Affirmation of Robert Carver

    y . ® ® i 

  

SUPREME COURT OF THE STATE OF NEW YORK 
COUNTY OF QUEENS 
a —— —  ——-  — —— ———— ————— X 

THE COUNCIL OF THE CITY OF NEW YORK, 

etal. 

AFFIRMATION 

Plaintiffs, 

- against - Index No. 004897-96 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 

CITY OF NEW YORK, et al., 

Defendants. 

n-ne = an a en ee en en X 

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS 

- QUEENS COALITION, et al., 

Plaintiffs, 

Index No. 10763/96 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 

CITY OF NEW YORK, et al., 

Defendants. 

o-oo 0 =. X 

ROBERT CARVER, an attorney admitted to practice in the courts of the State of 

New York, alfirms the following to be true under penalty of perjury: 

I I am an attorney in the office of PAUL A. CROTTY, Corporation Counsel 

ol the City of New York, attorney for defendants. This affirmation is submitted to enter into 

the record stipulations in Action No. 1 and Action No. 2, annexed hereto as Exhibits 1 and 2 

respectively, which (i) recite that the complaint in each Action has been amended, (ii) amend 

the answer in each Action to respond to the amended complaint, and (iii) deem amended 

 



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defendants’ notice ol motion for summary judgment and plaintiffs’ notices of cross-motion [or 

summary judgment so as to have been made upon such amended pleadings. 

Dated: New York, New York 

December 20, 1996 

[+ \ f= 

JloAse [URC STV . 

  

ROBERT CARVER 

 



    Exhibit 1



SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF QUEENS 

THE COUNCIL OF THE CITY OF NEW YORK, 

PETER F. VALLONE, SPEAKER OF THE 

COUNCIL, and ENOCH H. WILLIAMS, CHAIR STIPULATION 

OF THE COUNCIL HEALTH COMMITTEE, AMENDING ANSWER, 

NOTICE OF MOTION 

_ Plaintiffs, AND NOTICE OF 

, CROSS-MOTION 

- against - 
Index No. 004897-96 

RUDOLPH W. GIULIANI, THE MAYOR OF 

THE CITY OF NEW YORK, NEW YORK CITY 

HEALTH AND HOSPITALS CORPORATION, 

and NEW YORK CITY ECONOMIC 

DEVELOPMENT CORPORATION, 

Defendants. 

WHEREAS, on or about March 6, 1996, plainti{fs served a summons and verified 

complaint (the “Original Complaint”), and 

WHEREAS, on or about June 28, 1996, defendants served a verified answer to 

the Original Complaint (the “Original Answer”), and 

WHEREAS, on or about July 12, 1996, by Notice of Motion dated July 12, 1996, 

defendants moved, inter alia, pursuant to CPLR § 3212, for summary judgment, and 

WHEREAS, on or about July 18, 1996, plaintiffs served an amended complaint 

(the “Amended Complaint”), which Amended Complaint amended the Original Complaint by 

adding a Third Cause of Action, and 

WHEREAS, on or about August 23, 1996, by Notice of Cross-Motion dated 

August 23, 1996, plaintiffs cross-moved for summary judgment with respect to the Amended 

Complaint, and  



  

WHEREAS, by Stipulation dated September 9, 1996, the Original Answer was 

amended and deemed the Amended Answer, and defendants’ Notice of Motion dated July 12, 

1996, was deemed amended so as to have been made with respect to the Amended Complaint 

and upon the Amended Answer, and 

WHEREAS, on or about December 4, 1996, plaintifls, by their attorneys, Tenzer 

Greenblatt, LLP, and Richard M. Weinberg, Esq., further amended the Amended Complaint 

(the “Second Amended Complaint”) on the record and on consent of defendants, by adding a 

new paragraph “F” to the prayer for relief, and 

WHEREAS, the parties hereto wish to present the merits of their motions to the 

Court in the most efficient manner possible, and to avoid the service or presentation of 

unnecessary or duplicative papers, 

NOW, THEREFORE, it is hereby stipulated and agreed, by and between the 

attorneys for the parties herein, as follows: 

1. As amended by this paragraph, the Amended Answer shall be deemed to 

be the Second Amended Answer and responsive to the Second Amended Complaint. The 

Amended Answer is further amended to add the following paragraphs 49 through 53, which 

paragraphs shall be deemed inserted immediately following paragraph 48 in the Amended 

Answer: 

AS AND FOR A FOURTH DEFENSE 

49. The sublease calls for the continued delivery of services at 

Coney Island Hospital (“CIH”), the provision of indigent care, 

capital improvements of the facility, and HHC oversight. The 

HHC Board of Directors has found that “the sublease transaction 

represents an important step to further the continued vitality of 
+ CIH and the services it provides to the CIH community, in that it 

  

bo J 

 



  

will ensure the provision of a [ull continuum of quality care to that 

community, together with a much needed capital infusion for 

CIH”. (Resolution, November 8, 1996) 

50. The HHC Act, U.L. § 7385(6), expressly grants HHC the 

power to “dispose of by . . . lease or sublease, real . . . property, 

including but not limited to a health facility, or any interest therein 

for its corporate purposes . . . .” 

51. Moreover, section 7385(8) expressly authorizes entry into a 

lease with a private entity for the delivery of medical services in 

an HHC facility, without limitation as to whether such entity is 

organized on a for-profit or not-for-profit basis, granting HHC the 

power: 

[tJo provide health and medical services for the 

public directly or by agreement or lease with any 
person, firm or private or public corporation or 

association, through and in the health facilities of 

the corporation. (emphasis added) 

  
  

52. Nothing in Article XVII of the state constitution mandates a 

specific form or level of care to the indigent. 

53. Contrary to plaintiffs’ assertion, the sublease is expressly 

authorized by the HHC Act and consistent with the state 

constitution as well. 

2. Defendants’ Notice of Motion dated July 12, 1996 is deemed amended so 

as to have been made with respect to the Second Amended Complaint and upon the Second 

Amended Answer. 

3. Plaintiffs’ Notice of Cross-Motion dated August 23, 1996 is deemed 

amended so as to have been made with respect to the Second Amended Answer and upon the 

 



  

Sccond Amended Complaint. 

DATED: New York, New York 

December 17, 1996 

Ly rd i 

. er r=” 
a od - 

ar wr 

PAUL A. CROTTY 
Corporation Counsel of the 

City of New York 

Attorney for Defendants 

By:  Danicl Turbow 
Assistant Corporation Counsel 

100 Church Street 

New York, New York 10007 

(212) 788-0412 

/% £5 
‘HARD M. WEINBERG, EpQ. 

oh eral Counsel 

he Council of the City of New York 

ttorney for Plaintiffs 

y: Gail Zweig 

Of Counsel 

75 Park Place, 5th Floor 

New York, New York 10007 

(212) 788-7000 

Lon Ton holo A 

  

  

     

    

  

TENZER GREENBLATT LLP/ 
Attorneys for Plaintiffs 

By: Ira Finkelstein 

405 Lexington Avenue 

New York, New York 10174 

(212) 885-5000 

 



  Exhibit 2  



  

SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF QUEENS 
ER ——————— eR EE EE EE EE X 

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS 
- QUEENS COALITION, an unincorporated 

association, by its member WILLIAM MALLOY, STIPULATION 

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS AMENDING ANSWER, 

- CONEY ISLAND HOSPITAL COALITION, an NOTICE OF MOTION 

unincorporated association, by its member PHILIP AND NOTICE OF CROSS- 

R. METLING, ANNE YELLIN, and’ MARILYN MOTION 

MOSSOP, 
Index No. 10763/96 

Plaintiffs, 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 

CITY OF NEW YORK, NEW YORK CITY 

HEALTH AND HOSPITALS CORPORATION, and 

NEW YORK CITY ECONOMIC DEVELOPMENT 

CORPORATION, 

Defendants. 

on Xx 

WHEREAS, on or about May 16, 1996, plaintiffs served a summons and 

complaint (the “Original Complaint”), and 

WHEREAS, on or about July 1, 1996, defendants served an answer to the 

Original Complaint (the “Original Answer”), and 

WHEREAS, on or about July 12, 1996, by Notice of Motion dated July 12, 1996, 

defendants moved, inter alia, pursuant to CPLR § 3212, for summary judgment, and 

WHEREAS, on or about August 23, 1996, by Notice of Cross-Motion dated 

August 23, 1996, plaintiffs cross-moved for summary judgment, and 

WHEREAS, on or about December 4, 1996, plaintiffs, by their attorney, the 

Puerto Rican Legal Defense and Education Fund, amended the Original Complaint on the record 

 



  

and on consent of defendants, by adding a Third Cause of Action (the “Amended Complaint”), 

sct out in paragraphs 37, 38, and 39, as annexed hercto as Exhibit A, and 

WHEREAS, the parties hereto wish to present the merits of their motions to the 

Court in the most efficient manner possible, and to avoid the service or presentation of 

unnecessary or duplicative papers, 

NOW, THEREFORE, il is hereby stipulated and agreed, by and between the 

attorneys for the parties herein, as follows: 

1. As amended by this paragraph, the Original Answer shall be deemed to 

Ew the Amended Answer to the Amended Complaint. The Original Answer is amended as 

follows: 

(a) to add the following paragraphs 29(a), 29(b), and 29(c), which paragraphs 

shall be deemed inserted immediately following paragraph 29 in the Original Answer: 

29(a). Deny the allegations set forth in paragraph 37 of the 

Amended Complaint except admit that PHS New York, Inc. 

(“PHSNY”) is a for-profit corporation, refer the Court to 

PHSNY’s certificate of incorporation for the purposes for which it 

was formed, and affirmatively state that on or about November 8, 

1996, the HHC Board of Directors adopted a Resolution 

authorizing the HHC President to negotiate and execute an 

agreement for sublease and sublease of Coney Island Hospital to 

PHSNY (the “sublease”) in conformance with the terms and 

conditions set forth in the Resolution. 

29(b). Deny the allegations set forth in paragraph 38 of the 

Amended Complaint except admit that HHC is a public benefit 

corporation created pursuant to the HHC Act, and respectlully 

refer the Court to U.L. § 7382 and to the state constitution, Article 

XVII, §§ 3 and 4, for a complete and accurate statement of their 

contents. 

29(c). Deny the allegations set forth in paragraph 39 of the Amended Complaint. 

 



E 

  

and (b) to add the following paragraphs 41 through 46, which paragraphs shall 

be deemed inserted immediately following paragraph 40 in the Original Answer: 

AS AND FOR A FOURTH DEFENSE 
41. The sublease calls for the continued delivery of services at 

Coney Island Hospital (“CIH”), the provision ol indigent care, 

capital improvements of the facility, and HHC oversight. The 
HHC Board of Directors has found that “the sublease transaction 

represents an important step to further the continued vitality of 

CIH and the services it provides to the CIH community, in that it 

will ensure the provision of a full continuum of quality care to that 
community, together with a much needed capital infusion for 

CIH”. (Resolution, November 8, 1996) 

  

42. The HHC Act, U.L. § 7385(6), expressly grants HHC the 

power to “dispose of by . . . lease or sublease, real . . . property, 

including but not limited to a health facility, or any interest therein 

for its corporate purposes . . . .” 

43. Moreover, section 7385(8) expressly authorizes entry into a 

lease with a private entity for the delivery ol medical services in 

an HHC facility, without limitation as to whether such entity is 
organized on a for-profit or not-for-profit basis, granting HHC the 

power: 

[tJo provide health and medical services for the 

public directly or by agreement or lease with any 

person, firm or private or public corporation or 

association, through and in the health facilities of 

the corporation. . . . (emphasis added) 

  
  

44. Nothing in Article XVII of the state constitution mandates a 

specific form or level of care to the indigent. 

45. Contrary to plaintiffs’ assertion, the sublease is expressly 

authorized by the HHC Act and consistent with the state 

constitution as well. 

46. Accordingly, plaintiffs’ Third Cause of Action [ails to state a 

claim and should be dismissed. 

 



  

z. Delendants’ Notice of Motion dated July 12, 1996 is deemed amended so 

as to have been made with respect to the Amended Complaint and upon the Amended Answer. 

3, Plaintiffs’ Notice of Cross-Motion dated August 23, 1996 is deemed 

amended so as to have been made with respect to the Amended Answer and upon the Amended 

Complaint. 

DATED: New York, New York 

December 17, 1996 

Da Au V [ON Wa ¢ Cs 

PAUL A. CROTTY 
Corporation Counsel of the 

City of New York 

Attorney for Defendants 

By: Daniel Turbow 

Assistant Corporation Counsel 

100 Church Street 

New York, New York 10007 

(212) 788-0412 

  

lr : 
i le ttl Lives Bons Al 
  

PUERTO RICAN LEGAL DEFENSE 
& EDUCATION FUND, INC. 

Attorney for Plaintiffs 
By: Kenneth Kimerling, Esq. 

99 Hudson Street 

New York, New York 10013 

(212) 219-3360 

 



3. Plaintiffs seek to add the following paragraphs stating 

_. a new cause of action: 

¢ 

[0 

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 

\ rr to a (CoS=prEniit 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 

4 bh /  



  

Index Nos. 004897-96 and 10763/96 
  

SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF QUEENS 

  
  

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

Plaintiffs, 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE CITY 

OF NEW YORK, et al. 

Defendants. 

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS - 
QUEENS COALITION, et al., 

  
  

Plaintiffs, 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE CITY 

OF NEW YORK, et al. 

Defendants. 

  
  

AFFIRMATION OF ROBERT CARVER AND 

EXHIBITS 

  
  

PAUL A. CROTTY 

Corporation Counsel of the City of New York 

Attorney for Defendants 

100 Church Street 

New York, N.Y. 10007 

Of Counsel: Daniel Turbow 

Tel: (212) 788-0412