Notice of Motion; Affirmation in Support

    Pe | 

/ 
/ 

f 

SUPREME COURT OF THE STATE OF NEW YORK 

APPELLATE DIVISION: SECOND DEPARTMENT 

  

CAMPAIGN TO SAVE OUR PUBLIC 
HOSPITALS - QUEENS COALITION, an 

unincorporated association, by its member NOTICE OF MOTION 

WILLIAM MALLOY, CAMPAIGN TO SAVE 

OUR PUBLIC HOSPITALS - CONEY ISLAND Case No. 97-01339 

HOSPITAL COALITION, an unincorporated 

association, by its member PHILIP R. METLING, 

ANNE YELLIN, and MARILYN MOSSOP, 

Plaintiffs-Respondents, 

- 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-Appellants. 

PLEASE TAKE NOTICE, that upon the annexed affirmation of ELIZABETH 

DVORKIN, dated April 3, 1997, and the exhibits annexed thereto and the briefs and records 

filed on this appeal, defendants will move this Court at the Courthouse located at 45 Monroe 

Place, Brooklyn, New York, on April 11, 1997, for an order granting a preference in 

calendaring this appeal and directing that this appeal be argued together with the appeal in 

Council v. Giuliani, Case No.97-01337 
  

 



  

DATED: 

TO: 

New York, New York 

April 3, 1997 

PAUL A. CROTTY 

Corporation Counsel of the 
City of New York 

Attorney for Defendants 
100 Church Street 

New York, New York 10007 

(212) 788-1024 

By: Elizabeth Dvorkin 
Assistant Corporation Counsel 

EVETTE SOTO MALDONADO 

Puerto Rican Legal Defense & 

Education Fund, Inc. 
Attorney for Plaintiffs-Respondents 

99 Hudson Street, 14th Floor 

New York, New York 10013 

(212) 219-3360 

RACHEL D. GODSIL 

NAACP Legal Defense & Education Fund, Inc. 

Attorney for Plaintiffs-Respondents 

99 Hudson Street, Suite 1600 
New York, New York 10013 

(212) 291-1900 

BARBARA OLSHANSKY 

Center for Constitutional Rights 

Attorney for Plaintiffs-Respondents 

666 Broadway 
New York, New York 10012 

(212) 614-6139 

 



  

SUPREME COURT OF THE STATE OF NEW YORK 

APPELLATE DIVISION: SECOND DEPARTMENT 

CAMPAIGN TO SAVE OUR PUBLIC 
HOSPITALS - QUEENS COALITION, an 

unincorporated association, by its member AFFIRMATION IN 

WILLIAM MALLOY, CAMPAIGN TO SAVE SUPPORT 

OUR PUBLIC HOSPITALS - CONEY ISLAND 

HOSPITAL COALITION, an unincorporated Case No. 97-01339 

association, by its member PHILIP R. METLING, 

ANNE YELLIN, and MARILYN MOSSOP, 

Plaintiffs-Respondents, 

- 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-Appellants. 

ELIZABETH DVORKIN, an attorney admitted to practice law before the Courts of this 

State, affirms under penalty of law: 

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

City of New York, attorney for defendants - appellants in this matter. I make this affirmation 

in support of defendants’ motion for a preference in the calendaring of this appeal and for an 

  order directing that this appeal be argued together with the appeal in Council v. Giuliani, Case 

No. 97-01337. 

5 This case concerns whether the New York City Health and Hospitals Corporation 

("HHC") may sublease Coney Island Hospital to a private hospital company, PHS-NY. By 

 



  

order and judgment entered February 5, 1997, the Supreme Court, Queens County (Posner, J.), 

declared that the HHC Act bars HHC from entering into such a sublease. 

3. The sublease is an important part of HHC’s planning to adapt to the changes sweeping 

the field of health care. Accordingly, defendants immediately perfected their appeal to this 

Court, serving and filing the brief and record on appeal on March 11. 

4. While defendants are confident that this Court will reverse the lower Court's order 

and declare that HHC acted within its authority when it subleased Coney Island Hostal the 

existence of the lower Court decision threatens to slow all the other necessary administrative and 

judicial reviews. The resulting delays may be sufficient to kill the sublease, not because it is 

illegal or unwise, but simply because too much time has passed. Because HHC firmly believes 

that this transaction is in the best interests of the people it serves, we respectfully request that 

this Court grant this application for a preference in calendaring the appeal so that this Court may 

address the parties’ contentions on the merits in time to make a difference for bring this 

transaction into fruition. 

5. A significant transaction, such as the sublease of Coney Island Hospital, necessarily 

involves a series of administrative and judicial reviews. HHC and PHS-NY originally 

anticipated that they would not be able to close on the sublease until the State Department of 

Hospitals issued the necessary approvals, PHS-NY had negotiated a labor agreement, PHS-NY 

had obtained its financing and all litigation had been concluded.’ 

  

| The Campaign plaintiffs, with other groups, have brought two other actions challenging other 

aspects of the transaction, which are presently pending before the Supreme Court. In Jones v. 

Giuliani, N.Y. Co. Index No. 96-117768 (Gangel-Jacob, J.), plaintiffs argue that the HHC 

Board had insufficient information regarding the sublease and that the sublease violated 

procurement rules. In Commission on the Public’s Health System v. HHC, N.Y. Co. Index No. 

97-103242 (Gangel-Jacob, J.), plaintiffs argue that HHC failed to comply with the State 

(continued...) 

  

2 

 



  

6. Because the lower Court's declaration that the HHC Act bars HHC from subleasing 

a hospital goes to the heart of the proposed deal, its very existence has slowed the progress of 

these remaining approvals. Although HHC had moved for summary judgment in November in 

  another pending challenge to the transaction, Jones v. City, once the lower Court issued its 

judgment, the New York County Supreme Court struck Jones off the calendar, and only recently 

agreed to restore the matter and issue a decision. A copy of the Jones order striking the case 

from the calendar is attached as Ex. A. In addition, after the lower Court issued its judgment, 

the State Department of Health referred to the possibility that HHC might have to obtain new 

legislation in discussing the certificate of need application process. A copy of the State 

Department of Health letter is attached as Ex. B. Thus, defendants now request that this Court 

hear their appeal as soon as possible, so that the entire approval process can get back on track. 

7. By this motion, defendants also request that this appeal be heard together with the 

appeal in Council v. Giuliani, Case No. 97-01337. The Campaign case and the Council case 
  

were argued together before the lower Court, who issued a single opinion covering both cases. 

The lower Court’s judgment in both cases contains identical decretal paragraphs. Defendants 

perfected the appeals together, and submitted the same appellants’ brief in both cases. It would 

be in the interest of judicial economy to have both cases heard by the same pie! at the same 

time. 

  

L (...continued) 
Environmental Quality Review Act before approving the sublease. 

In addition, the labor unions representing workers at Coney Island Hospital have brought unfair 

labor practice proceedings before the Board of Collective Bargaining concerning the decision to 

privatize. E.g. DC 37 v. City of New York, BBB-1837-96. 
  

ip 

 



  

WHEREFORE, it is respectfully requested that this Court issue an order granting a 

preference in the calendaring of this appeal and directing that this appeal be argued together with 

Council v. Giuliani, Case No. 97-01337. 
  

Dated: New York, New York 

April 3, 1997 

Di WO 
  

ELIZABETN DVORKIN 

 



  Exhibit A  



     

  

   

  

   

  

     

        

    

  

        

r OF THE STATE OF NEW YORK — NEW Y@RK COUNTY 
i SR ; 

  

-  eanr SU v 
* INDEX NO. 

  

  

  

"MOTION DATE 
  

{. MOTION SEQ. NO. 
  

  

MOTION CAL. MO. 
  

  

  

PAPERS NUMBERED 
  

  

  

  

q 
A 
fl 
A 
A 
3 

es
s.

 
Be
x 

  

  

Replying oo 

     

      

    

Cross- Motion bi 

Upon the ro ay s motion aud (ik id ds. tl AHEAD 

R
R
E
D
 

TO
 

   

        

   

  

    

  
  

nd 1&2 4 : < % 7 ¢ lL ) 

Ld z ; me 
{Y. £. ZA Eg 4 rr 2 iy 74 

7d 
a 

11 i I A 

NY oS 5 : x 1 , 

al JV 1 ALLY] i ; a L ju Ta WE to A 

“i pi 
bi pil HN Iter ANG CLiA A oe A) ig 

2 Ie ur 
iy 4 ; X 
of Ll AAI Ld 

QO . 

— LL * -. al x 

Oo 2 : = = : 

5 on / : 3 

"en Ri 0 
i oT. Loa 

[2 : 
be L3.C. 

1 

NON- FINAL PISPOSITION 

  
  

 



  Exhibit B  



NISL LROHL FERS Fax ISIE 4 gon 

  

State of New York 

ent of Health 

Coming Tower, Empire Sate Plan 

Albany, New York 12237 

  

BARBARA A. DEBUONO, J.D. M.2.H. February 4, 1997 Phone: (518) 474-2011 

Commissioner 

Fax: (318) 474-9450 

Alan G. Hevesi 

Comptroller of the City of New York 

| Centre Street 

New York, New York 10007-2341 

Dear Comptroller Hevest: 

Thank you for your letter regarding the New York City Health and Hospitals 

Corporation's (HHC) proposed sublease of Coney Island Hospital to Primary Health Systems- 

New York (PHS-NY). 

Under Article 28 of the New York State Public Health Law, entities that propose to 

become cstablished as operators of health care facilities must obtain the approval of the State 

Public Health Council (PHC). The process includes reviews and recommendations by the State 

Hospital Review and Planning Council (SHRPC) and Department of Health staff, under whose 

auspices the Public Health Couacil review process is coordinated. Staff indicate that HHC and 

PHS-NY are aware of this requiternent and have indicated their intent to submit an application 

for review, 

The State Suprerne Court has recently ruled that the proposed sublease may first require 

an amendment to the 1970 state law that established the HHC, as well as extensive public review 

and approval by the New York City Council. These activities must be carried out prior to the 

submission of an application. 

All applications submitted to the department are reviewed carefully and comprehensively 

to ensure their compliance with all applicable provisions of the Public Health Law and to address 

any issucs regarding the need for such services, the financial feasibility of the proposed 

arrangement. and the charecter and competence of the proposed applicant. The review process 

includes opportunity for full discussion concerning applications at the public meetings of the 

SHRPC Project Review Commirtes and the PHC Establishment Committee, as well as at the 

meetings of the full Councils. 

Thapk you for sharing with me the information aad issues outlined in your letter. 

Basis dfnrS mb 
Barbara A. DeBuono, M.D, M.P H. 

Commissioner of Health 

ate PpCirywie Comes | Pm Sad Carper Ganlell 

 



  

Index No. 97-01339 
  

SUPREME COURT OF THE STATE OF NEW YORK 

APPELLATE DIVISION: 

SECOND DEPARTMENT 
  
  

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS, ET 

AL 

> Plaintiffs-Respondents, 

- against - 

RUDOLPH W. GIULIAN, ET AL 

Defendants-Appellants. 

    

NOTICE OF MOTION 

    

PAUL A. CROTTY 
Corporation Counsel of the City of New York 

Attorney for Defendants 

100 Church Street 

New York, N.Y. 10007 

Of Counsel: Elizabeth Dvorkin 

Tel: (212) 788-1024 

NYCLIS No. 
    

w Due and timely service is hereby admitted. 

New York, N.Y. he dain vomta nis 129. 

Pa PN he THE RN Sa pe mie. Wey AL ir chr ne A Sel vee a hac SS REE Cull RC RR IESE SE