Notice of Motion to Amend Complaint

    * ® 
SUPREME COURT OF THE STATE OF NEW YORK 
COUNTY OF QUEENS 

THE COUNCIL OF THE CITY OF NEW YORK, et al. 

Plaintiffs, INDEX NO. 004897-96 

Hon. Herbert Posner 
- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 
CITY OF NEW YORK, et al, 

Defendants. NOTICE OF MOTION TO 

  

AMEND COMPLAINT 

X 

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS - 

QUEENS COALITION, an unincorporated 
association, et al., 

Plaintiffs, INDEX NO. 10763/96 

Hon. Herbert Posner 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 
CITY OF NEW YORK, et al., 

Defendants. 

PLEASE TAKE NOTICE, that upon the annexed 

affirmation of KENNETH KIMERLING, ESQ., dated November 27, 1996, 

and upon all of the pleadings and proceedings heretofore had 

herein, the undersigned will move this Court, at the Courthouse 

located at 88-11 Sutphin Boulevard, in the Borough of Queens, 

City and State of New York, on the day of December, 1996, at 

9:30 A.M., or as soon thereafter as counsel may be heard, for an 

order pursuant to CPLR § 3025(c), granting leave to amend the 

complaint to add the following cause of action: 

 



THIRD CAUSE OF ACTION 

37. Defendants propose to sublease Coney Island 

Hospital to Primary Health Systems - New York ("PHS-NY"), a 

for-profit corporation. PHS-NY must be operated by its 

directors for the primary purpose of providing profit to its 

shareholders. 

38. The Health and Hospitals Corporations Act, 

Unconsolidated Laws § 7381 et. seq. created the Health and 

Hospitals Corporation ("HHC") as a public benefit 

corporation. The HHC Act provides that HHC is "in all 

respects for the benefit of the people of the state of New 

York and of the city of New York, and is a state, city and 

public purpose."  U,L. § 7382. BHHC is the statutory 

mechanism to fulfill New York City’s constitutional 

obligation to provide care to the indigent. New York State 

Constitution Article XVII, 88 3 & 4. 

39. Defendants’ proposed sublease of Coney Island 

Hospital to a for-profit corporation violates the HHC Act. 

New York, New York 

December ., 1996 

Kenneth Kimerling 
Puerto Rican Legal Defense & 
Education Fund, Inc. 
89 Hudson St., 14th Floor 

New York, New York 10013 

(212) 219-3360 

Elaine R. Jones 
Director-Counsel 
Norman Chachkin 
Marianne L. Engelman Lado  



  

Rachel D. Godsil 
NAACP Legal Defense & 
Educational Fund, Inc. 
99 Hudson St., 16th Floor 

New York, New York 10013 

(212) 219-1900 

Barbara Olshansky 
Center For Constitutional 
Rights 
666 Broadway, 7th Floor 
New York, New York 10012 

(212) 664-6464 

Attorneys for Plaintiffs 
TO: Paul A. Crotty 

Corporation Counsel of the 
City of New York 

Attorney for Defendants 
100 Church Street 
New York, New York 10007 

(212) 788-0412 

By: Daniel Turbow 
Assistant Corporation Counsel 

Edward Sadowsky, Esq. 
Tenzer Greenblatt LLP 
Attorneys for City Council 
The Chrysler Building 
405 Lexington Avenue 
New York, New York 10174 

(212) 855-5000 

 



SUPREME COURT OF THE STATE OF NEW YORK 
COUNTY OF QUEENS 

THE COUNCIL OF THE CITY OF NEW YORK, et al. 

Plaintiffs, INDEX NO. 004897-96 

Hon. Herbert Posner 
- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 

CITY OF NEW YORK, et al, 

Defendants. AFFIRMATION OF 

KENNETH KIMMERLING   

  

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS - 

QUEENS COALITION, an unincorporated 
association, et al., 

Plaintiffs, INDEX NO. 10763/96 

Hon. Herbert Posner 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 
CITY OF: NEW YORK, et al., 

Defendants. 

KENNETH KIMERLING, an attorney duly admitted to the Bar of 

State of New York, does hereby affirm under penalty of perjury: 

1. 1 am attorney for Plaintiffs in Campaign to Save Our 
  

Public Hospitals and submit this affirmation in support of   

Plaintiffs’ application for leave to amend the Complaint to 

conform to the proof and argument requested by the Court. 

2. Although a motion may not be necessary under CPLR 

3025(c) ; Plaintiffs in an exercise of prudence request that their 

Complaint be amended to conform to the evidence that has been 

submitted to the Court.  



3. Plaintiffs seek to add the following paragraphs stating 

a new cause of action: 

THIRD CAUSE OF ACTION 

37. Defendants propose to sublease Coney Island 

Hospital to Primary Health Systems - New York ("PHS-NY"), a 

for-profit corporation. PHS-NY must be operated by its 

directors for the primary purpose of providing profit to its 

shareholders. 

38. The Health and Hospitals Corporations Act, 

Unconsolidated Laws § 7381 et. seq. created the Health and 

Hospitals Corporation ("HHC") as a public benefit 

corporation. The HHC Act provides that HHC is "in all 

respects for the benefit of the people of the state of New 

York and of the city of New York, and is a state, city and 

public purpose." U.L. § 7382. HHC is the statutory 

mechanism to fulfill New York City’s constitutional 

obligation to provide care to the indigent. New York State 

Constitution Article XVII, §8 3 % 4. 

39. Defendants’ proposed sublease of Coney Island 

Hospital to a for-profit corporation violates the HHC Act. 

4. Defendants have submitted to the Court a proposed sub- 

lease of Coney Island Hospital. At the Court's instruction, the 

parties have exchanged briefs on the issue of the legality of 

this lease under the New York City Health and Hospitals 

Corporation Act. 

5. Thus, this motion merely seeks to conform the pleadings  



  

to the events that have taken place and are before the Court for 

consideration. 

WHEREFORE Plaintiffs respectfully request that the proposed 

paragraphs be added to their complaint. 

I HEREBY AFFIRM THAT THE ABOVE STATEMENTS ARE-TRUE TO MY 

KNOWLEDGE AND BELIEF, 

  

KENNETH KIMERLING 
0, TY