An unvarnished blog that dips into the past and comments
on the present of WBAI-FM, a once significant, intelligent New York
radio station that for years has suffered chronic abuse from within and now
nears extinction. Your comments are welcomed and will not be censored.
Sunday, July 23, 2017
New filings for King Kong
These recent filings from Himmelstein appear to me, a layman, to attempt to do two things: 1) Argue explicitly as opposed to implicitly for unconscionability as to the contract; 2) In support of that attempt, introduce a statement from Crigler, a well-regarded communications lawyer.
There is a great deal of noise in the unholy mess of Himmelstein’s arguments as presented, much of which seems to me to strongly suggest that Himmelstein is utterly and absolutely well beyond their depth. In addition to the sheer confusion of presentation and argument and a seemingly near-random presentation of citations in support, consider one trivial but striking minor item: Himmelstein at several points employs as if in quasi-magical fashion the legal phrase ‘nun pro tunc’. The actual term, however, is nunc pro tunc and would seem to me to have little if any valid applicability in this context, and even less as invoked by Himmelstein.
Perhaps I err.
As to substance:
Previously Himmelstein had at best argued en passant and implicitly for unconscionability. They seem, now, to be attempting to have another go at it, emphasizing in argument that it’s an affirmative defense while in no way addressing the shortcomings of that argument already addressed by ESRT – they simply repeat that market conditions were sharply adverse at the time the lease was signed, and they produce a statement from Crigler, a communications lawyer, to that effect.
ESRT has already fully addressed the unconscionability argument, though it was only implicitly presented, and none of this new material presents any new evidence of any sort that I can see.
‘Buyers regret’ that conditions at the time of lease favored ESRT and that in the time since WBAI/Pacifica has beggared itself is a less-than-compelling argument in my opinion.
It will be interesting to see ESRT and the Court’s response and judgement