Respondent's Brief

    New York County To be submitted by: 

Index No. 103242/97 Elizabeth Dvorkin 

NEW YORK SUPREME COURT 
APPELLATE DIVISION: FIRST DEPARTMENT 

  

THE COMMISSION ON THE PUBLIC'S HEALTH SYSTEM, 

an unincorporated association, by its member MARSHALL 

ENGLAND, THE CAMPAIGN TO SAVE OUR PUBLIC 

HOSPITALS - CONEY ISLAND COLLATION, an 

unincorporated association, by its member MILDRED COLLINS; 

THE NEW YORK CITY ENVIRONMENTAL JUSTICE 

ALLIANCE; THE LATINO COMMISSION ON AIDS; 

WAILIACE WATSON; CHRISTOPHER REXACH; and 

PATRICIA JOHNSON, 

Plaintiffs-Appellants, 

- against - 

THE NEW YORK CITY HEALTH AND HOSPITALS 

CORPORATION, 

Defendant-Respondent. 

  

RESPONDENT’S BRIEF 

  

MICHAEFL D. HESS, 

Corporation Counsel of the 

City of New York, 

Attorney for Respondents 

100 Church Street, 

New York, New York 10007. 

(212) 788-0412 

Francis F. Caputo, 

Elizabeth Dvorkin, 

of Counsel. 

September 9, 1998 REPRODUCED ON RECYCLED PAPER  



NEW YORK SUPREME COURT 

APPELLATE DIVISION: FIRST DEPARTMENT 

  

THE COMMISSION ON THE PUBLIC'S HEALTH SYSTEM, an 

unincorporated association, by its member MARSHALL 

ENGLAND, THE CAMPAIGN TO SAVE OUR PUBLIC 

HOSPITALS - CONEY ISLAND COALITION, an unincorporated 

association, by its member MILDRED COLLINS; THE NEW 

YORK CITY ENVIRONMENTAL JUSTICE ALLIANCE: THE 

LATINO COMMISSION ON AIDS; WALLACE WATSON; 

CHRISTOPHER REXACH; and PATRICIA JOHNSON, 

Plaintiffs- Appellants, 

- against - 

THE NEW YORK CITY HEALTH AND HOSPITALS 

CORPORATION, 

Defendant-Respondent. 

  

RESPONDENT’S BRIEF 

  

PRELIMINARY STATEMENT 

This appeal challenges on environmental grounds the decision by the New York 

City Health and Hospitals Corporation (“HHC?”) to privatize Coney Island Hospital. Plaintiffs 

appeal from the order of the Supreme Court, New York County (Gangel-Jacob, J.), entered 

September 18, 1997. The order dismissed the action as moot in light of the declaration of the 

Appellate Division, Second Department, in Council of the City of New York v. Giuliani that 
  

HHC lacks the authority to privatize Coney Island Hospital. The Court of Appeals has granted 

leave to appeal in the Council case and appeal is likely to be calendared in November. 
   



  

  
Justice Gangel-Jacob also dismissed as moot another case challenging the Coney 

Island Hospital privatization: Jones v. HHC. The plaintiffs in Jones have informed the City that   

they intend to perfect an appeal from the order in their case for the November term of this 

Court. 

QUESTION PRESENTED 

Whether this appeal is moot. 

STATEMENT OF FACTS 

In 1996, the HHC Board approved the sublease of Coney Island Hospital to a 

private hospital company. In taking this step, HHC retained a series of environmental 

consultants, who advised HHC that because its traditional patient base was being courted by 

private hospitals, HHC was less likely to be able to provide quality medical services to all, 

including the poor and uninsured, at Coney Island Hospital if HHC retained the hospital than if 

it subleased the hospital. The sublease provided that the private hospital company would provide 

more charity care than HHC was currently able to provide, and would continue to offer all 

important medical services currently provided through the hospital. The sublease included 

important enforcement and monitoring mechanisms to ensure that these guarantees would be 

carried out (Affidavit of Maria Mitchell Exhibit J, Exhibit M pp. 258-62, Answer § 134-135, 

Mitchell Aff. § 34). 

  

I Citations are to the Record, where a document is indicated. 

Plaintiffs prepared what they denominate a “Joint Appendix” without consulting HHC about its 

contents. HHC does not consent to plaintiffs’ exclusion of the Answer from the so-called Joint 
Appendix. 

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Plaintiffs initiated this action in February, 1997. They argued that HHC violated 

the State Environmental Quality Review Act (“SEQRA”) when it approved the sublease of 

Coney Island Hospital. Plaintiffs sought an order vacating the HHC Board resolution approving 

the sublease and directing that HHC comply with SEQRA (54-56). 

In its Answer, HHC explained that the decision to sublease a hospital was not 

subject to SEQRA and that, in any event, HHC had taken a “hard look” at the environmental 

effects of the sublease and properly found no significant adverse effects on the environment 

(Answer). 

Both parties moved for summary judgment and the matter was fully briefed and 

argued. Before the Court issued its decision, the Appellate Division, Second Department, issued 

a declaratory judgment in another action finding that HHC did not have the power to enter into 

a sublease of Coney Island Hospital to PHS. Council of the City of New York v. Giuliani, 232 
  

A.D.2d 178 2d Dept. 1997). The Court of Appeals granted leave to appeal, ' N.Y. 2d 

1998 N.Y. Lexis 1478 (1998), and the appeal is pending. 

After the decision of the Appellate Division in the Council case but before the   

Court of Appeals granted leave to appeal, the lower court dismissed this action, sua sponte, as 

moot (17). 

OPINION BELOW 

In Council of the City of New York v. Giuliani, ~~ AD2d  * 
(24 Dept. 1997), NYLJ], September 12, 1997, p. 25 col. 3 the 

Appellate Division, Second Department recently held that New 

York City Health and Hospitals Corporation (“HHC”) exceeded its 

authority when it agreed to sublease Coney Island Hospital to 

Primary Health Systems New York, Inc., a private, for-profit 

entity (“sublease”), in that such transfer of responsibility for the 

operation of the hospital and the provision of medical services is 

not authorized by HHC’s governing statute. 

  

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Accordingly, the petition now before me, which seeks an order 

annulling the HHC board resolution which permits negotiation and 

execution of the sublease, directing HHC to continue management 

and operation of the Coney Island Hospital until it complies with 

SEQRA and CEQR; and enjoining HHC from entering into such 

sublease until it complies with SEQRA and CEQR, is dismissed as 

moot. 

STATEMENT OF POSITION 

Respondents take no position on whether this litigation was properly dismissed as 

moot. Under New York State law, a court order is given full force and effect in other litigation 

even though an appeal is pending. See Matter of Arbitration between Amica Mutual Ins. Co., 
  

85 A.D.2d 727, 728-29 (2d Dept. 1981); Weinstein Korn & Miller § 5011.23b (citing cases). 

Nonetheless, if there is reason to believe that the case relied on is likely to be reversed on 

  

appeal, the better course might be to wait the outcome of the appeal. See Amica Mutual, 85 

A.D.2d at 729. Indeed, if petitioners had made such a suggestion to the lower court on 

reargument, instead of filing and perfecting the instant appeal, much court time and effort could 

have been avoided. 

  

The lower Court correctly found that based on Council of the City of New York 

v. Giuliani HHC does not have the authority to enter into the sublease of Coney Island Hospital 

that is challenged in the instant case. Therefore, this case has been rendered moot because of 

developments in decisional law. Since the lower Court could not have known that the Court of 

Appeals would grant leave to appeal in Council of the City of New York v. Giuliani and 
  

certainly could not have predicted the outcome of the appeal, it was not error to dismiss the 

instant case on the ground of mootness. 

As a practical matter, however, we will soon know whether the Court of Appeals 

will find that HHC had the authority to enter into the challenged sublease. Therefore, it may 

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be the better course for this Court to hold disposition of this appeal until the Council case is 
  

resolved. If the Court of Appeals upholds the validity of the sublease of Coney Island Hospital 

to a private hospital company and dismisses the other causes of action comprising the Council 

case, this Court may choose to reverse the lower Court’s holding on the ground that this 

proceeding will no longer be moot based on the state of decisional law. 

Dated: New York, New York 

September 9, 1998 

MICHAEL D. HESS 

Corporation Counsel of the City of New York 

Attorney for Defendants-Cross-Respondents 

100 Church Street 

New York, New York 10007 

(212) 788-0412 

  

By: ELIZABETH DVORKIN 

FRANCIS F. CAPUTO, 

ELIZABETH DVORKIN, 

of Counsel 

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