Motion for Leave to File Brief and Brief Amici Curiae

    Court of Appeals 
State of New York 

  

CAMPAIGN TO SAVE OUR PUBLIC 

HOSPITALS-QUEENS COALITION, an 

unincorporated association, by its member WILLIAM 

MALLOY; CAMPAIGN TO SAVE OUR PUBLIC 

HOSPITALS-CONEY ISLAND HOSPITAL 

COALITION, an unincorporated association, by its 

member PHILIP R. METLING; ANNE YELLIN; 

and MARILYN MOSSOP, 

Plaintiffs-Respondents-Cross Appellants, 

-against- 

RUDOLPH W. GIULIANI, as the Mayor of the City 

of New York; NEW YORK CITY HEALTH AND 

HOSPITALS CORPORATION; and NEW YORK 

CITY ECONOMIC DEVELOPMENT 

CORPORATION, 

Defendants-Appellants-Cross-Respondents. 

BRIEF OF AMICI CURIAE FERNANDO FERRER, as 

President of the Borough of the Bronx, C. VIRGINIA FIELDS, as 

President of the Borough of Manhattan, HOWARD GOLDEN, as 

President of the Borough of Brooklyn, and COMMUNITY 

BOARD NO. 9, QUEENS 

DORSEY & WHITNEY LLP 

Attorneys for Amici Curiae 

250 Park Avenue 

Of Counsel. New York, New York 10177 

John J. Lee (212) 415-9200 

 



  

TABLE OF CONTENTS 

TABLEOR AUTHORITIES 5... c.f na nai Dis mien sor alivs st win ia il 

PRELIMINARY STATEMENT, ...... 0. co. ohn i dds ia se on ninnid a wns 4 

QUESTION PRESENTED. . .. 0. i va is day dan stint vse niin = spe s ba a 4 

INTEREST OFTHE AMICICURIALE .... .... sins snes vind Bmisinnn'sn si wn od 

FACTUAL AND PROCEDURAL BACKGROUND... chin cgi sein sid saan so 6 

ARGUMENT hie le i calvin cvs oi nile sin win svn ws ala die ate w Halas Wag 8 

ULURPIS APPLICABLE TOTHECIHSUBIEASE ..............cc ii vanni 8 

 



  

TABLE OF AUTHORITIES 

Page 

CASES 

Brennan v. City of New York, 59 N.Y.2d 791, 451 N.E.2d 478, 

464 N.Y.S. 20 131 (A083), on vais sos isin sitions ans SH aii a wn <x a we el Ee Ws a 11 

Maudlin v. N.Y. City Transit Auth., 64 A.D.2d 114, 408 N.Y.S.2d 538, 

S30 (1 Dept 198), cee sss he enna ee aay A ER sul] 

Village of Bronxville v. Francis, 206 Misc. 339, 134 N.Y.S.2d 59, (Sup Ct., Westchester County 

1954), modified on other grounds, 1 A.D.2d 236, 150 N.Y.S.2d 906 

(2d Dep't). aff'd, 1 N.Y.24 839,135 N.E.2d 724, 133 N.Y.S.2d (1956) ..........c0vv var 11 

STATUTES 

Gen. Construction Ll, § 37 i res ciate sain vo vritaniginmis sna nner snnsiomes susassis 11 

NY. CHY Ohare 107-0, ctv res co riinrse ts sai mies as veisainn swiss mame sess ves passim 

N.Y. City Chanter § 197-0. coe vnniviieriinnnacoviivmasn sii svn vain signs ei vnsan passim 

NY. CHy Chanter § IBA) . coe ors cress ierisit ns annninsdnn dune sty vinimenvans uses 12 

N.Y. City Charter I8AMNEY cress ss Be vin stir os svn nin enn sinins ann x vst dni 13 

N.Y. CityCharterS 150(e). i... .. vr ca edie h nin cans visi sania sia nn nv vi 12 

UNCONSOL. Laws 8 7380 i cet ci i ie hbase ea sa a ae vite ae aa ae 8 

UNCONSOL Law 8 738 eee i de chs cies setae suseiaie sininis 50 os ria s Win nisin a Winn in 4 nn ain 8,9 

UNconSOl. Lawes IS ree se setae ines camrninnn saibniainn wn in annie nies ra nian en 9 

nCONSOl. Laws 8 738 (8) vn vis vie cf a tes vv sis ssinna any sae ie nr rae hae te 9 

nconsSol, Lats 138000) . oe occa tivities ci senivias srs ania as Cra wma ee 9,11 

UnconSol. Laws § 73888) ries ve. vei cae cl a aa aaa sae rs ed ye ae nan 9 

UnCOnSOl Laws S38 10). ev a in i ra a iat cE rm ede wen ie Sie 9 

 



Unconsol. Laws § 7386(1)(a) 

Unconsol. Laws § 7386(2)(b) 

Unconsol. Laws § 7386(7) 

Unconsol. Laws § 7390(5)-(8) 

MISCELLANEOUS 

2 Morris, N.Y. Practice Guide, Real Estate §20.04, at 20-47... ....... 0 vena rsvinnn 10 

Final Report of the N.Y. City Charter Revision Comm'n 20-21 (Jan. 1989-Nov. 1989). 

 



  

PRELIMINARY STATEMENT 

Fernando Ferrer, as President of the Borough of the Bronx, C. Virginia Fields, as 

President of the Borough of Manhattan, Howard Golden, as President of the Borough of 

Brooklyn, and Community Board No. 9, Queens, respectfully submit this amici curiae brief to 

assist this Court in its determination of whether the Appellate Division, Second Department erred 

in deleting that portion of the Queens County Supreme Court’s holding that any lease of a facility 

of the New York City Health and Hospitals Corporation (the “HHC”) 1s subject to the application 

of the Uniform Land Use Review Procedure (“ULURP”), N.Y. City Charter §§ 197-c and 197-d. 

The law and facts make it clear that the HHC’s disposition of City-owned property, namely the 

subleasing of the Coney Island Hospital (“CIH”) to private interests, is subject to and must 

comply with ULURP. Such an outcome is not only mandated by ULURP, but is also consistent 

with the statutory scheme creating and governing the HHC. 

Any finding to the contrary would frustrate the purposes of ULURP, the procedure 

which ensures community, borough and City Council review of any sale, lease or other 

disposition of City property. This procedure is an extremely important mechanism for public 

dialogue surrounding significant decisions that involve City-owned property. 

QUESTION PRESENTED 

This brief will limit itself to the following issue: Does the lease or sublease of a 

City-owned facility operated by the HHC require the application of and compliance with 

ULURP, sections 197-c and 197-d of the New York City Charter? 

Amici curiae suggest that the question be answered in the affirmative. 

 



  

INTEREST OF THE AMICI CURIAE 

The amici consist of three Borough Presidents -- Fernando Ferrer (the Bronx), C. 

Virginia Fields (Manhattan) and Howard Golden (Brooklyn) (collectively, the “Borough 

Presidents”) -- and one community planning board, Community Board No. 9, Queens (the 

“Board”). The Borough Presidents are the elected executive officials of their respective 

boroughs. Among the duties of the Borough Presidents, which include working with the Mayor 

on City budget issues, monitoring and modifying the delivery of City services within their 

boroughs, and engaging in strategic planning for their boroughs, is the important task of 

reviewing and commenting on major land use decisions and proposing sites for City facilities 

within their boroughs. Thus, as principal participants in the land review process, the Borough 

Presidents are intimately familiar with ULURP issues. 

The Board is one of fifty-nine community boards within the City. The Board, 

which serves the Queens communities of Richmond Hill, Woodhaven, Kew Gardens and Ozone 

Park, consists of unpaid members who are appointed by the President of the Borough of Queens. 

The Board acts as an advisor to the Borough President and as a liaison between the communities 

it serves and City agencies. One of the Board's most important functions 1s to participate in and 

to advise the Borough President on the planning and review of land use within the community. 

Thus, like the Borough Presidents, the Board is intimately familiar with ULURP issues. 

Among other things, the amici’s interest in this litigation stems from their strong 

concern for maintaining the integrity of the land use review process and to assure that ULURP is 

properly applied and followed when considering the disposition of City-owned property. In this 

case, the Mayor and the HHC have proposed a plan to privatize the City’s public hospitals by 

 



  

subleasing the hospitals’ services and facilities to a private for-profit entity. However, despite 

the subleasing of the City’s hospital facilities, the presidents of the boroughs in which the 

facilities are located and the corresponding community boards were not afforded the opportunity 

to conduct a formal review of the land-use implications of the subleases. Simply put, this 

amounts to an end-run around ULURP, a statutory scheme that was enacted to ensure community 

input into land use planning and development. In that vein, the Borough Presidents and the 

Board respectfully submit this brief to lend a perspective from principal participants of the 

ULURP process. 

FACTUAL AND PROCEDURAL BACKGROUND 

This litigation presents the latest chapter of Mayor Rudolph W. Giuliani's plan to 

alleviate the City’s fiscal deficit by privatizing various assets of the City. One of the latest 

targets of his privatization plan has been the City’s public hospitals. It has been the Mayor’s 

belief that privatization of these hospitals would result in a more effective and more efficient 

delivery of the City’s health-care services. 

In 1994, the Mayor announced a plan to privatize the HHC-operated hospitals and 

commissioned the New York City Economic Development Corporation (“EDC”) to manage this 

privatization effort. In 1995, the EDC proposed a transfer of the facilities and services of three 

hospitals to private entities through long-term subleases -- Coney Island Hospital (“CIH"), 

Queens Hospital Center and Elmhurst Hospital Center (collectively, the “Target Hospitals”). 

CIH became the first of the Target Hospitals to be the subject of negotiations for a sublease. 

In June 1996, the City, HHC, and PHS-NY, Inc. (“PHS-NY), a for-profit 

 



  

corporation, executed a letter of intent calling for negotiations to achieve a long-term sublease of 

property, plant and equipment of CIH to PHS-NY, and a contract for PHS-NY to operate CIH as 

a community-based, acute care, in-patient hospital during the term of the sublease. On October 

8, 1996, pursuant to section 7385(6) of the HHC Act, the HHC and the New York City 

Department of Health held a public hearing on the proposed sublease of CIH. On November 8, 

1996, the HHC Board of Directors authorized and approved the sublease of CIH. 

In March 1996, the City Council commenced a declaratory judgment action, 

entitled The Council of the City of New York v. Giuliani, Index No. 004897/96 (Sup. Ct., Queens 

County), challenging the Mayor's privatization plan. The City Council alleges, inter alia, that 

the privatization of the Target Hospitals by means of subleases requires City Council approval 

and is subject to ULURP. In May 1996, the Plaintiffs-Respondents-Cross-Appellants in the 

appeal before this Court, two unincorporated associations made up of members who live and 

work in the communities served by the Target Hospitals, filed a similar action in the same court, 

entitled Campaign to Save Our Public Hospitals-Queen’s Coalition v. Giuliani, Index No. 

10763/96 (Sup. Ct., Queens County). The parties in both actions cross-moved for summary 

judgment, and the Supreme Court, Queens County, ordered that the two actions be jointly tried. 

During the pendency of the motions, the HHC approved the CIH sublease. The 

plaintiffs in both actions amended their complaints to allege that the sublease of CIH constituted 

and ultra vires act, and amended their motion papers to address that issue. 

On January 13, 1997, the Supreme Court granted summary judgment in favor of 

the plaintiffs, finding that the subleasing of HHC facilities was subject to ULURP, that such 

subleasing required the approval of the Mayor and the City Council, and that HHC did not have 

 



statutory authority to sublease CIH. The defendants appealed from the January 13, 1997 order to 

the Appellate Division, Second Department. 

On September 8, 1997, the Appellate Division affirmed the Supreme Court’s 

opinion to the extent that it found that the sublease of CIH constitutes and ultra vires act. The 

Appellate Division, however, modified the decision inasmuch as it found that the subleasing of a 

HHC facility requires the approval of the Mayor and the City Council, and that any satiiease of 

an HHC facility is subject to the ULURP, and deleted those findings from the Supreme Court’s 

order and judgment. This appeal and cross-appeal by the parties followed. 

ARGUMENT 

ULURP IS APPLICABLE TO THE CIH SUBLEASE 

An analysis of the Mayor's privatization of HHC-operated health-care fneilities 

must begin with a discussion of the HHC itself. In 1969, the New York State Legislature enacted 

the Health and Hospital Corporation Act (the “HHC Act”), Unconsolidated Laws §§ 7381 et seq., 

establishing the HHC. The HHC was created at the request of New York City to provide 

comprehensive physical and mental health care to the ill and infirm of the City, and was 

specifically charged with ensuring the provision of quality health-care services to those who 

could least afford such services. Unconsol. Laws § 7382.7 To effect its goals, the HHC was 

granted broad powers designed to provide the “legal, financial and managerial” flexibility 

necessary to carry out is purpose. Id. §§ 7382, 7385. Among those powers is the power “[t]o 

  

The HHC’s creation was intended to alleviate many of the problems faced by the 

City in its operation of the municipal hospital system. See Unconsol. Laws § 

7382.  



make and execute contracts and leases and all other agreements necessary or convenient for the 

exercise of its powers and the fulfillment of its corporate purposes.” Id. § 7385(5). In addition, 

the HHC was granted the power “[t]o provide health and medical services for the public directly 

or by agreement or lease with any person or private or public corporation or association through 

and in health facilities of the corporation. ...” Id. § 7385(8). 

Those broad powers, however, were not left unchecked. and in some instances, 

subject to direct oversight by the City. See Unconsol. Laws §§ 7385(19); 7386(1)(a), 2(b), (7); 

7390(5)-(8). Among the HHC’s powers was the power to “dispose of by sale, lease or sublease, 

real or personal property including but not limited to a health facility, or any interest therein . . . 

Id. § 7385(6). This authority, however, was contingent upon the approval of the then-existing 

New York City Board of Estimate. Id. 

Thus, in connection with the HHC Act, and with the authorization of the Board of 

Estimate, the City and the HHC entered into an agreement on July 1, 1970, under which the HHC 

agreed to assume responsibility for maintaining and operating the City’s public hospitals. Eleven 

hospitals included under that agreement have been in operation since 1970. Now, three of those 

hospitals are the target of the Mayor's privatization plan, which contemplates the privatization of 

those hospitals through subleases with private entities. One of those hospitals, CIH, has already 

been approved for transfer to a private entity through a sublease. Wrongfully, however, formal 

review of the lease under ULURP was not part of the approval process. 

The mechanism by which the City’s communities have input into decisions 

regarding the development and disposition of City-owned property located in their communities 

is ULURP, which was enacted “in response to a perceived need for informed local community  



  

involvement in land use planning, for adequate technical and professional review of land use 

decisions and for final decision making by a politically accountable body . ...” 2 Morris, N.Y. 

Practice Guide, Real Estate § 20.04, at 20-47. Initially, final authority under ULURP had been 

entrusted to the Board of Estimate. Id. However, in 1989, the City Council became the final 

decision maker with respect to land use issues. Final Report of the N.Y. City Charter Revision 

Comm’n 20-21 (Jan. 1989-Nov. 1989).7 

ULURP provides in pertinent part: 

Except as otherwise provided in this charter, applications by any 

person or agency for changes, approvals, contracts, consents, 

permits or authorization thereof, respecting the use, development 

or improvement of real property subject to City regulation shall be 

reviewed pursuant to a uniform review procedure in the following 

categories: 

(10) Sale, lease (other than a lease of office space), exchange, or 

other disposition of the real property of the city . . . . 

N.Y. City Charter § 197-c (emphasis added.) Simply stated, a disposition of City-owned 

property by any person or agency is subject to ULURP. As demonstrated below, the disposition 

of CIH by HHC is subject to ULURP. 

As a preliminary matter, it is indisputable that CIH constitutes “real property” of 

the City, and that the sublease of CIH constitutes a “lease, exchange or other disposition of City 

property.” Id. The relevant inquiry, therefore, is whether the HHC constitutes a “person” under 

  

4 It was recognized that “because racial and language minority groups will enjoy 

greater representation on the Council than they have on the Board, they will be 

able to exert more influence if there is conflict with the mayor on a land use 

matter.” Final Report, supra, at 20-21. 

10 

 



  

the statute. 

The City Charter and, specifically, section 197-c, does not define “person” with 

respect to land use issues. However, this State’s laws of statutory construction and interpretation 

define “person” to include corporations. See Gen. Construction L. § 37 (“The term person 

includes a corporation . . . .”); see also Village of Bronxville v. Francis, 206 Misc. 339, 340, 134 

N.Y.S.2d 59, 60-61 (Sup Ct., Westchester County 1954), modified on other grounds, 1 A.D.2d 

236, 150 N.Y.S.2d 906 (2d Dep't), aff'd, 1 N.Y.2d 839, 135 N.E.2d 724, 153 N.Y.S.2d (1956) 

(finding that the “term ‘person’ includes a corporation.”).¥ The HHC, a public benefit 

corporation, may therefore be considered a “person” for the purposes of ULURP. Accordingly, 

the sublease of CIH by the HHC, which is a disposition of City-owned property by a person, is 

subject to ULURP. 

The application of ULURP to the CIH sublease is not inconsistent with the 

statutory scheme governing the HHC and disposal of City-owned property. As discussed above, 

the HHC’s power to “dispose of by sale, lease or sublease, real or personal property including but 

not limited to a health-care facility, or any interest therein,” Unconsol. Laws § 7385(6), was not 

left unchecked. Initially, this authority was contingent upon the approval of the then-existing 

Board of Estimate. Id. However, in 1989, the Board of Estimate was abolished. 

The Board of Estimate’s demise, however, did not abolish the check on the 

  

¥ The HHC has been held not be an agency of the City. See Brennan v. City of New 

York, 59 N.Y.2d 791, 792,451 N.E.2d 478, 479, 464 N.Y.S.2d 731, 732 (1983). 

4 Furthermore, section 197-c of the Charter should be liberally construed. See 

Maudlin v. N.Y. City Transit Auth., 64 A.D.2d 114, 117, 408 N.Y.S.2d 538, 539 

(1% Dep’t 1982). 

11 

 



  

HHC'’s power to dispose of City property under section 7385 of the HHC Act. In fact, section 

7385 of the HHC Act was left unchanged. Rather, concurrent with the Board of Estimate’s 

demise was the enactment of section 1152(e) of the New York City Charter, which distributed 

the powers of the defunct Board of Estimate to other governing bodies. See N.Y. City Charter § 

1152(e). Section 1152(e) provides, in relevant part: 

[T]he powers and responsibilities of the board of estimate, set forth 

in any state or local law, that are not otherwise devolved by the 

terms of such law, upon another body, agency or officer shall 

devolve upon the body, agency or officer of the city charged with 

comparable and related powers under this charter, consistent with 

the purposes and intent of this charter. . . . 

(Emphasis supplied.) Thus, the Board of Estimate’s demise notwithstanding, oversight of the 

HHC’s power to lease or transfer a health-care facility or other real property did not disappear; 

that responsibility was merely reassigned. 

The determination as to which entity has succeeded the Board of Estimate in its 

function to review land use issues is contained in section 384 of the New York City Charter, 

which provides, in part, “No real property of the city may be sold, leased, exchanged or otherwise 

disposed of except with the approval of the mayor and as may be provided by law unless such 

power is expressly vested by law in another agency.” N.Y. City Charter § 384(a) (emphasis 

supplied). It appears that the Mayor has succeeded the Board of Estimate in land use review 

decisions. Indeed, under this section of the Charter, the Mayor has the power to review and 

authorize the terms of the sale of City-owned land. See id. § 384(b)(1). 

However, as indicated by the phrase contained in section 384, “and as may be 

provided by law,” the Mayor's review and approval power is not absolute, and is subject to other 

applicable laws. See id. § 384(a). In this case, that law is ULURP. In fact, section 384 expressly 

12 

 



  

applicable laws. See id. § 384(a). In this case, that law 1s ULURP. In fact, section 384 expressly 

provides that any disposition of City-owned land is subject to the requirements of ULURP, N.Y. 

City Charter §§ 197-c and 197-d: 

Any application for the sale, lease (other than a lease of office 

space), exchange or other disposition of real property of the city 

shall be subject to review and approval pursuant to sections one 

hundred ninety-seven-c and one hundred ninety-seven-d [ULURP]. 

Such review will be limited to the land use impact and implications 

of the proposed transaction. 

N.Y. City Charter § 384(b)(5) (emphasis supplied). 

Thus, the former powers of the Board of Estimate with respect to the disposition 

of City now fall to both the Mayor, for approval of the business terms of the disposition, and to 

the ULURP participants,” for an assessment of land use impacts. Id. §§ 384(a) & (b)(9). 

Accordingly, any action to sell, lease, or otherwise dispose of City-owned property by HHC is 

subject to ULURP, in addition to the Mayor’s approval. 

In sum, the HHC Act clearly intends for there to be oversight of the HHC’s 

disposal of City-owned health-care facilities. The current mechanism for such oversight is 

ULURP. Under ULURP, any plan to sell or lease those facilities must be submitted for review by 

affected and interested community boards and borough presidents, the City Planning Commission, 

and the City Council. Since the sublease of CIH by HHC amounts to a disposition of City 

property, such a sublease should be subject to the application of this vital land review process. 

  

4 Under ULURP, affected community boards and borough presidents have the 
opportunity to review a proposed plan for the disposition of City-owned property, 
and the City Planning Commission, then the City Council, and ultimately the 

Mayor must approve of any decision with respect to the plan. N.Y. City Charter § 

197-c. 

13 

 



For the foregoing reasons, the Borough Presidents and the Board as amici curiae 

«mort the position of the Respondents-Cross-Appellants in this appeal that the sublease of CIH 

ssubject to the application ULURP, N.Y. City Charter §§ 197-c and 197-d. Accordingly, amici 

  

spectfully request that this Court reverse that part of the Appellate Division, Second 257 ) 

Department’s decision deleting that portion of the Queens County Supreme Court’s holding that 

uy lease of an HHC facility is subject to the application of ULURP. 

Dated: New York, New York 

January 12, 1999 

Respectfully submitted, 

DORSEY & WHITNEY 

John J. Lee 
  

250 Park Avenue 

New York, New York 10177 

(212) 421-5555 

Attorneys for Fernando 
Ferrer, as President of the Borough of 
the Bronx, C. Virginia Fields, as 
President of the Borough of Manhattan, 
Howard Golden, as President of the 
Borough of Brooklyn, and Community 
Board No. 9 as Amici Curiae 

 



      

Court of Appeals 
State of New York 

  

CAMPAIGN TO SAVE OUR PUBLIC 

HOSPITALS-QUEENS COALITION, an 

unincorporated association, by its member WILLIAM 

MALLOY; CAMPAIGN TO SAVE OUR PUBLIC 

HOSPITALS-CONEY ISLAND HOSPITAL 

COALITION, an unincorporated association, by its 

member PHILIP R. METLING; ANNE YELLIN; 

and MARILYN MOSSOP, 

Plaintiffs-Respondents-Cross Appellants, 

-against- 

RUDOLPH W. GIULIANI, as the Mayor of the City 

of New York; NEW YORK CITY HEALTH AND 

HOSPITALS CORPORATION; and NEW YORK 

CITY ECONOMIC DEVELOPMENT 

CORPORATION, 

Defendants-Appellants-Cross-Respondents. 

BRIEF OF AMICI CURIAE FERNANDO FERRER, as 

President of the Borough of the Bronx, C. VIRGINIA FIELDS, as 

President of the Borough of Manhattan, HOWARD GOLDEN, as 

President of the Borough of Brooklyn, and COMMUNITY 

BOARD NO. 9, QUEENS 

DORSEY & WHITNEY LLP 

Attorneys for Amici Curiae 

250 Park Avenue 

Of Counsel. New York, New York 10177 

John J. Lee (212) 415-9200



  

TABLE OF CONTENTS 

TABLE OF AUTHORITIES .. 0. ee nd iia sass sha vs eein ens wimisain sss 11 

PRELIMINARY STATEMENT 0. er ein siaiiinn so Badan wie sd ood aie Laiminte savin ois 4 

QUESTION PRESENTED ifn. vuoi. bis sites dana acen ts svn sainin o's ones 2 

INTEREST OFTHE AMICICURIAE i... oi visas ine So dia win Sirsa wn sin sis sain sv abiaidin sins 5 

FACTUAL AND PROCEDURAL BACKGROUND , . cco v een sie a vast assis sitie vin sans 6 

ARGUMENT fc cl he ves vis tat eis a ares binge ain wins aw wv gh on win aR 8 

ULURPIS APPLICABLE TO THE CIH SUBLEASE®. ..... cc. ion iv niin 8 

CONCLUSION csv sido ties. isle 220i Firs nn aon tele Boeinihin Sb BE Wo a 4 wh x wine Wats Wins + a 14 

  
 



    

TABLE OF AUTHORITIES 

Page 

CASES 

Brennan v. City of New York, 59 N.Y.2d 791, 451 N.E.2d 478, 

TLE ROR EYE CR VR LTR Tee i SECON Cae SR Re 9 RE 11 

Maudlin v. N.Y. City Transit Auth., 64 A.D.2d 114, 408 N.Y.S.2d 538, 

S301 Dept 1080): rn te Ce a Gani wie nt Si ae RE ee 11 

Village of Bronxville v. Francis, 206 Misc. 339, 134 N.Y.S.2d 59, (Sup Ct., Westchester County 

1954), modified on other grounds, 1 A.D.2d 236, 150 N.Y.S.2d 906 

(2d Dep't), aff'd, 1 N.Y.24 839,135 N.E2d 724, 133N.Y.S.2d (1956) . . . . . .. . . cn vis von 11 

STATUTES 

Gen. Construction. 8 37 ib. dt. cis ids 0 Ps niin as vin ah en ans vs nn niin ons 11 

NY Cy Charter 8i107:=C. 0.0. rs sins en dna aww swan di Ss i eaaluinte passim 

NY. CityCharter 8 197-d. . ...  spldeincids ysis sais ss cuidlan wa nonials slevidis sie o's 00s passim 

NY. City Chanter 8 340A) 8 a thie sss cis mirns a ais sins Bos wigs fain wie wn winza lb olaleis warnie o ale x 12 

N.Y City CharteriSi38dMNS) ov oe ciel he ia as wna os a anheibien «vx oan Fak unin a 13 

NY. City Charter SSE). LF. i te ii iss Bh ils ae Cn nina oi so nialoge's wivie Wesin » + 12 

nconSol. Laws Bi SB a. lr se rs hr nn i nwt ae ania swe Ae 8 

NCONSOl. Laws Sd I re i ivi aigie vr was ia ES nw ie ene wn ae 8,9 

ET TT REL 1 SE el RE LOI BI Ei SR a LR ER ae 9 

LNconsSOl Laws YS ( 8) aii. «thir eh ine «pt de CAR Se a Ba a ds a A 9 

UnCOonSOl: Laws § 7 3008 i te oan ai is ies aide i nite in Sn a in ae 4 ech wwe a 9,611 

LINCONSOL. Laws § 7 3888) «cc tactic ra ivi ve os Sa J si wnne a anh aya wae WA» 9 

Unconsol. Laws Bg 38 Sl 0) a oi i cre coh a eh RE ea a a a Bae 9 

 



    

Enconsol, Laws S3B00INE) os vuimttunr ss 2 ponae wo sie sine vwgntinta y einvinn rnin th eas dane 

Unconsol. Laws § BSB INDY i soi a adr a a sey ea Sa ria es a 9 

Unconsol. Laws § 7386(7) «oct 9 

Unconsol. Laws § VEL REO a Da Sd en SEO GENS, CC np 9 

MISCELLANEOUS 

>» Morris, N.Y. Practice Guide, Real Estate § 20.04,at 20-47. ..................o.oinnn. 10 

Final Report of the N.Y. City Charter Revision Comm’n 20-21 (Jan. 1989-Nov. 1989). ..... 10 

1 

 



    

PRELIMINARY STATEMENT 

Fernando Ferrer, as President of the Borough of the Bronx, C. Virginia Fields, as 

president of the Borough of Manhattan, Howard Golden, as President of the Borough of 

Brooklyn, and Community Board No. 9, Queens, respectfully submit this amici curiae brief to 

assist this Court in its determination of whether the Appellate Division, Second Department erred 

in deleting that portion of the Queens County Supreme Court’s holding that any lease of a facility 

of the New York City Health and Hospitals Corporation (the “HHC”) is subject to the application 

of the Uniform Land Use Review Procedure (“ULURP”), N.Y. City Charter §§ 197-c and 197-d. 

The law and facts make it clear that the HHC’s disposition of City-owned property, namely the 

subleasing of the Coney Island Hospital (“CIH") to Srl interests, is subject to and must 

comply with ULURP. Such an outcome is not only mandated by ULURP, but is also consistent 

with the statutory scheme creating and governing the HHC. 

Any finding to the contrary would frustrate the purposes of ULURP, the procedure 

which ensures community, borough and City Council review of any sale, lease or other 

disposition of City property. This procedure is an extremely important mechanism for public 

dialogue surrounding significant decisions that involve City-owned property. 

QUESTION PRESENTED 

This brief will limit itself to the following issue: Does the lease or sublease of a 

City-owned facility operated by the HHC require the application of and compliance with 

ULURRP, sections 197-c and 197-d of the New York City Charter? 

Amici curiae suggest that the question be answered in the affirmative. 

 



    

INTEREST OF THE AMICI CURIAE 

The amici consist of three Borough Presidents -- Fernando Ferrer (the Bronx), C. 

Virginia Fields (Manhattan) and Howard Golden (Brooklyn) (collectively, the “Borough 

Presidents”) -- and one community planning board, Community Board No. 9, Queens (the 

“Board”). The Borough Presidents are the elected executive officials of their respective 

boroughs. Among the duties of the Borough Presidents, which include working with the Mayor 

on City budget issues, monitoring and modifying the delivery of City services within their 

boroughs, and engaging in strategic planning for their boroughs, is the important task of 

reviewing and commenting on major land use decisions and proposing sites for City facilities 

within their boroughs. Thus, as principal participants in the land review process, the Borough 

Presidents are intimately familiar with ULURP issues. 

The Board is one of fifty-nine community boards within the City. The Board, 

which serves the Queens communities of Richmond Hill, Woodhaven, Kew Gardens and Ozone 

Park, consists of unpaid members who are appointed by the President of the Borough of Queens. 

The Board acts as an advisor to the Borough President and as a liaison between the communities 

it serves and City agencies. One of the Board's most important functions is to participate in and 

to advise the Borough President on the planning and review of land use within the community. 

Thus, like the Borough Presidents, the Board is intimately familiar with ULURP issues. 

Among other things, the amici’s interest in this litigation stems from their strong 

concern for maintaining the integrity of the land use review process and to assure that ULURP is 

properly applied and followed when considering the disposition of City-owned property. In this 

case, the Mayor and the HHC have proposed a plan to privatize the City’s public hospitals by 

 



    

«ubleasing the hospitals’ services and facilities to a private for-profit entity. However, despite 

the subleasing of the City’s hospital facilities, the presidents of the boroughs in which the 

frcilities are located and the corresponding community boards were not afforded the opportunity 

to conduct a formal review of the land-use implications of the subleases. Simply put, this 

amounts to an end-run around ULURP, a statutory scheme that was enacted to ensure community 

input into land use planning and development. In that vein, the Borough Presidents and the 

Board respectfully submit this brief to lend a perspective from principal participants of the 

ULURP process. 

FACTUAL AND PROCEDURAL BACKGROUND 

This litigation presents the latest chapter of Mayor Rudolph W. Giuliani's plan to 

alleviate ” City’s fiscal deficit by privatizing various assets of the City. One of the latest 

targets of his privatization plan has been the City’s public hospitals. It has been the Mayor’s 

belief that privatization of these hospitals would result in a more effective and more efficient 

delivery of the City’s health-care services. 

In 1994, the Mayor announced a plan to privatize the HHC-operated hospitals and 

commissioned the New York City Economic Development Corporation (“EDC”) to manage this 

privatization effort. In 1995, the EDC proposed a transfer of the facilities and services of three 

hospitals to private entities through long-term subleases -- Coney Island Hospital (“CIH”), 

Queens Hospital Center and Elmhurst Hospital Center (collectively, the “Target Hospitals™). 

CIH became the first of the Target Hospitals to be the subject of negotiations for a sublease. 

In June 1996, the City, HHC, and PHS-NY, Inc. (“PHS-NY"), a for-profit 

 



    

corporation, executed a letter of intent calling for negotiations to achieve a long-term sublease of 

property, plant and equipment of CIH to PHS-NY, and a contract for PHS-NY to operate CIH as 

, community-based, acute care, in-patient hospital during the term of the sublease. On October 

8. 1996, pursuant to section 7385(6) of the HHC Act, the HHC and the New York City 

Department of Health held a public hearing on the proposed sublease of CIH. On November 8, 

1996, the HHC Board of Directors authorized and approved the sublease of CIH. 

In March 1996, the City Council commenced a declaratory judgment action, 

entitled The Council of the City of New York v. Giuliani, Index No. 004897/96 (Sup. Ct., Queens 

County), challenging the Mayor's privatization plan. The City Council alleges, inter alia, that 

the privatization of the Target Hospitals by means of subleases requires City Council approval 

and is subject to ULURP. In May 1996, the Plaintiffs-Respondents-Cross-Appellants in the 

appeal before this Court, two unincorporated associations made up of members who live and 

work in the communities served by the Target Hospitals, filed a similar action in the same court, 

entitled Campaign to Save Our Public Hospitals-Queen’s Coalition v. Giuliani, Index No. 

10763/96 (Sup. Ct., Queens County). The parties in both actions cross-moved for summary 

judgment, and the Supreme Court, Queens County, ordered that the two actions be jointly tried. 

During the pendency of the motions, the HHC approved the CIH sublease. The 

plaintiffs in both actions amended their complaints to allege that the sublease of CIH constituted 

and ultra vires act, and amended their motion papers to address that issue. 

On January 13, 1997, the Supreme Court granted summary judgment in favor of 

the plaintiffs, finding that the subleasing of HHC facilities was subject to ULURP, that such 

subleasing required the approval of the Mayor and the City Council, and that HHC did not have 

 



    

statutory authority to sublease CIH. The defendants appealed from the January 13, 1997 order to 

the Appellate Division, Second Department. 

On September 8, 1997, the Appellate Division affirmed the Supreme Court’s 

opinion to the extent that it found that the sublease of CIH constitutes and ultra vires act. The 

Appellate Division, however, modified the decision inasmuch as it found that the subleasing of a 

HHC facility requires the approval of the Mayor and the City Council, and that any sublease of 

an HHC facility is subject to the ULURP, and deleted those findings from the Supreme Court’s 

order and judgment. This appeal and cross-appeal by the parties followed. 

ARGUMENT 

ULURP IS APPLICABLE TO THE CIH SUBLEASE 

An analysis of the Mayor's privatization of HHC-operated health-care facilities 

must begin with a discussion of the HHC itself. In 1969, the New York State Legislature enacted 

the Health and Hospital Corporation Act (the “HHC Act”), Unconsolidated Laws §§ 7381 et seq., 

establishing the HHC. The HHC was created at the request of New York City to provide 

comprehensive physical and mental health care to the ill and infirm of the City, and was 

specifically charged with ensuring the provision of quality health-care services to those who 

could least afford such services. Unconsol. Laws § 7382.1 To effect its goals, the HHC was 

granted broad powers designed to provide the “legal, financial and managerial” flexibility 

necessary to carry out is purpose. Id. §§ 7382, 7385. Among those powers is the power “[t]o 

  

4 The HHC’s creation was intended to alleviate many of the problems faced by the 

City in its operation of the municipal hospital system. See Unconsol. Laws § 

7382. 

 



    

make and execute contracts and leases and all other agreements necessary or convenient for the 

oxercise of its powers and the fulfillment of its corporate purposes.” Id. § 7385(5). In addition, 

the HHC was granted the power “[t]o provide health and medical services for the public directly 

or by agreement or lease with any person or private or public corporation or association through 

and in health facilities of the corporation . ...” Id. § 7385(8). 

Those broad powers, however, were not left unchecked, and in some instances, 

subject to direct oversight by the City. See Unconsol. Laws §8§ 7385(19); 7386(1)(a), 2(b), (7); 

7390(5)-(8). Among the HHC’s powers was the power to “dispose of by sale, lease or sublease, 

real or personal property including but not limited to a health facility, or any interest therein . . . 

I Id. § 7385(6). This authority, however, was contingent upon the approval of the then-existing 

New York City Board of Estimate. Id. 

Thus, in connection with the HHC Act, and with the authorization of the Board of 

Estimate, the City and the HHC entered into an agreement on July 1, 1970, under which the HHC 

agreed to assume responsibility for maintaining and operating the City’s public hospitals. Eleven 

hospitals included under that agreement have been in operation since 1970. Now, three of those 

hospitals are the target of the Mayor's privatization plan, which contemplates the privatization of 

those hospitals through subleases with private entities. One of those hospitals, CIH, has already 

been approved for transfer to a private entity through a sublease. Wrongfully, however, formal 

review of the lease under ULURP was not part of the approval process. 

The mechanism by which the City’s communities have input into decisions 

regarding the development and disposition of City-owned property located in their communities 

is ULURP, which was enacted “in response to a perceived need for informed local community 

 



    

involvement in land use planning, for adequate technical and professional review of land use 

decisions and for final decision making by a politically accountable body . . .." 2 Morris, N.Y. 

Practice Guide, Real Estate § 20.04, at 20-47. Initially, final authority under ULURP had been 

entrusted to the Board of Estimate. Id. However, in 1989, the City Council became the final 

decision maker with respect to land use issues. Final Report of the N.Y. City Charter Revision 

Comm’n 20-21 (Jan. 1989-Nov. 1989). 

ULURP provides in pertinent part: 

Except as otherwise provided in this charter, applications by any 

person or agency for changes, approvals, contracts, consents, 

permits or authorization thereof, respecting the use, development 

or improvement of real property subject to City regulation shall be 

reviewed pursuant to a uniform review procedure in the following 

categories: 

(10) Sale, lease (other than a lease of office space), exchange, or 

other disposition of the real property of the city . . . . 

N.Y. City Charter § 197-c (emphasis added.) Simply stated, a disposition of City-owned 

property by any person or agency is subject to ULURP. As demonstrated below, the disposition 

of CIH by HHC is subject to ULURP. 

As a preliminary matter, it is indisputable that CIH constitutes “real property” of 

the City, and that the sublease of CIH constitutes a “lease, exchange or other disposition of City 

property.” Id. The relevant inquiry, therefore, is whether the HHC constitutes a “person” under 

  

5 It was recognized that “because racial and language minority groups will enjoy 

greater representation on the Council than they have on the Board, they will be 

able to exert more influence if there is conflict with the mayor on a land use 
matter.” Final Report, supra, at 20-21. 

10 

 



    

the statute? 

The City Charter and, specifically, section 197-c, does not define “person” with 

respect to land use issues. However, this State’s laws of statutory construction and interpretation 

define “person” to include corporations. See Gen. Construction L. § 37 (“The term person 

includes a corporation . . .."); see also Village of Bronxville v. Francis, 206 Misc. 339, 340, 134 

N.Y.S.2d 59, 60-61 (Sup Ct., Westchester County 1954), modified on other grounds, 1 A.D.2d 

236, 150 N.Y.S.2d 906 (2d Dep't), aff'd, 1 N.Y.2d 839, 135 N.E.2d 724, 153 N.Y.S.2d (1956) 

(finding that the “term ‘person’ includes a corporation.”).¥ The HHC, a public benefit 

corporation, may therefore be considered a “person” for the purposes of ULURP. Accordingly, 

the sublease of CIH by the HHC, which is a disposition of City-owned property by a person, is 

subject to ULURP. 

The application of ULURP to the CIH sublease is not inconsistent with the 

statutory scheme governing the HHC and disposal of City-owned property. As discussed above, 

the HHC’s power to “dispose of by sale, lease or sublease, real or personal property including but 

not limited to a health-care facility, or any interest therein,” Unconsol. Laws § 7385(6), was not 

left unchecked. Initially, this authority was contingent upon the approval of the then-existing 

Board of Estimate. Id. However, in 1989, the Board of Estimate was abolished. 

The Board of Estimate’s demise, however, did not abolish the check on the 

  

¥ The HHC has been held not be an agency of the City. See Brennan v. City of New 

York, 59 N.Y.2d 791, 792,451 N.E.2d 478, 479, 464 N.Y.S.2d 731, 732 (1983). 

4 Furthermore, section 197-c of the Charter should be liberally construed. See 

Maudlin v. N.Y. City Transit Auth., 64 A.D.2d 114, 117,408 N.Y.S.2d 538, 539 

(1% Dep’t 1982). 

11 

 



HHC's power to dispose of City property under section 7385 of the HHC Act. In fact, section 

+385 of the HHC Act was left unchanged. Rather, concurrent with the Board of Estimate’s 

jemise was the enactment of section 1152(e) of the New York City Charter, which distributed 

he powers of the defunct Board of Estimate to other governing bodies. See N.Y. City Charter § 

1152(e). Section 1152(e) provides, in relevant part: 

[T]he powers and responsibilities of the board of estimate, set forth 

in any state or local law, that are not otherwise devolved by the 

terms of such law, upon another body, agency or officer shall 

devolve upon the body, agency or officer of the city charged with 

comparable and related powers under this charter, consistent with 

the purposes and intent of this charter. . . . 

(Emphasis supplied.) Thus, the Board of Estimate’s demise notwithstanding, oversight of the 

HHC’s power to lease or transfer a health-care facility or other real property did not disappear; 

that responsibility was merely reassigned. 

The determination as to which entity has succeeded the Board of Estimate in its 

function to review land use issues is contained in section 384 of the New York City Charter, 

which provides, in part, “No real property of the city may be sold, leased, exchanged or otherwise 

disposed of except with the approval of the mayor and as may be provided by law unless such 

power is expressly vested by law in another agency.” N.Y. City Charter § 384(a) (emphasis 

supplied). It appears that the Mayor has succeeded the Board of Estimate in land use review 

decisions. Indeed, under this section of the Charter, the Mayor has the power to review and 

authorize the terms of the sale of City-owned land. See id. § 384(b)(1). 

However, as indicated by the phrase contained in section 384, “and as may be 

provided by law,” the Mayor’s review and approval power is not absolute, and is subject to other 

applicable laws. See id. § 384(a). In this case, that law is ULURP. In fact, section 384 expressly 

12 
pr    



applicable laws. See id. § 384(a). In this case, that law is ULURP. In fact, section 384 expressly 

provides that any disposition of City-owned land is subject to the requirements of ULURP, N.Y. 

City Charter §§ 197-c and 197-d: 

Any application for the sale, lease (other than a lease of office 

space), exchange or other disposition of real property of the city 

shall be subject to review and approval pursuant to sections one 

hundred ninety-seven-c and one hundred ninety-seven-d [ULURP]. 

Such review will be limited to the land use impact and implications 

of the proposed transaction. 

N.Y. City Charter § 384(b)(5) (emphasis supplied). 

Thus, the former powers of the Board of Estimate with respect to the disposition 

of City now fall to both the Mayor, for approval of the business terms of the disposition, and to 

the ULURP participants,” for an assessment of land use impacts. Id. §§ 384(a) & (b)(5). 

Accordingly, any action to sell, lease, or otherwise dispose of City-owned property by HHC is 

subject to ULURP, in addition to the Mayor's approval. 

In sum, the HHC Act clearly intends for there to be oversight of the HHC’s   
disposal of City-owned health-care facilities. The current mechanism for such oversight is 

ULURP. Under ULURP, any plan to sell or lease those facilities must be submitted for review by 

affected and interested community boards and borough presidents, the City Planning Commission, 

and the City Council. Since the sublease of '"IH by HHC amounts to a disposition of City 

property, such a sublease should be subject to the application of this vital land review process. 

  

Under ULURP, affected community boards and borough presidents have the 

opportunity to review a proposed plan for the disposition of City-owned property, 

and the City Planning Commission, then the City Council, and ultimately the 

Mayor must approve of any decision with respect to the plan. N.Y. City Charter § 

197-c. 

13    



  

For the foregoing reasons, the Borough Presidents and the Board as amici curiae 

support the position of the Respondents-Cross-Appellants in this appeal that the sublease of CIH 

ssubject to the application ULURP, N.Y. City Charter §§ 197-c and 197-d. Accordingly, amici 

spectfully request that this Court reverse that part of the Appellate Division, Second 

pepartment’s decision deleting that portion of the Queens County Supreme Court’s holding that 

ny lease of an HHC facility is subject to the application of ULURP. 

nated: New York, New York 

January 12, 1999 

Respectfully submitted, 

DORSEY & WHITNEY 

By: i
f
 

John J. Lee 

  

250 Park Avenue 

New York, New York 10177 

(212) 421-5555 

Attorneys for Fernando 

Ferrer, as President of the Borough of 

the Bronx, C. Virginia Fields, as 

President of the Borough of Manhattan, 

Howard Golden, as President of the 

Borouyh of Brooklyn, and Community 

Board No. 9 as Amici Curiae