Campaign Plaintiffs’ Supplemental Memorandum of for Law In Support of Plaintiffs’ Motion Summary Judgement

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SUPREME COURT OF THE STATE OF NEW YORK 
COUNTY OF QUEENS 

  

oo i pe er 0 ot we ame ee 

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

Plaintiffs, INDEX NO. 004897-96 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 

CITY OF NEW YORK, et al, 

Defendants. 
wi 30, ti ct ne en mn en ne X 

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS - 

QUEENS COALITION, an unincorporated 
association, et al., 

Plaintiffs, INDEX NO. 10763/96 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 

CITY OF NEW YORK, et al., 

Defendants. 
i. so pm ee te ee a ep X 

CAMPAIGN PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM OF LAW 
IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 
  

KENNETH KIMERLING 

PUERTO RICAN LEGAL DEFENSE & 

EDUCATION FUND, INC. 

99 Hudson St., 14th Floor 

New York, N.Y. 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., 1leth Floor 

New York, New York 10013 

(212) 219-1900 

BARBARA OLSHANSKY 

CENTER FOR CONSTITUTIONAL RIGHTS 

666 Broadway, 7th Floor 
New York, N.Y. 10012 

(212) 664-6464 

 



  

SUPREME COURT OF THE STATE OF NEW YORK 
COUNTY OF QUEENS 
em mw em i et 5 mi. on A. we X 

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

Plaintiffs, INDEX NO. 004897-96 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 

CITY OF NEW YORK, et al, 

Defendants. 
2 sm i ree aS em eo, eer Sl X 

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS - 

QUEENS COALITION, an unincorporated 
association, et al., 

Plaintiffs, INDEX NO. 10763/96 

- against - 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 

CITY OF NEW YORK, et al., 

Defendants. 
ws 2 mm 0 oS nt Sv fn. Sm) em ms i mn i rm X 

CAMPAIGN PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM OF LAW 
IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 
  

PRELIMINARY STATEMENT 
  

Digpogitions of New" York: (City’s real property are 

unquestionably among the most important issues facing local 

government. Land and resources are scarce and the implications for 

the affected neighborhood may be grave. Similarly, the provision 

of health care to New York City residents and particularly to the 

poor is one of New York City government’s most central 

responsibilities; the City is obligated by the State constitution 

to provide care to the poor.’ 

  

1 

The New York State Constitution mandates that the State 
and its political subdivisions provide aid, care, and support for 
the needy and protect the health of the inhabitants of the State 

 



When the City determined that a public benefit corporation 

would more effectively provide care to the indigent than the 

municipal hospital system, the City worked closely with the State 

Legislature and the Governor for the enactment of the Health and 

Hospitals Act which created the Health and Hospitals Corporation 

("HHC") .2 - Although a primary goal of the City and the Act was to 

free HHC from constraints upon its ability to deliver health 

services, the enactment also effectuated the concurrent goal of 

ensuring the City's econcinuing control over its real property.’ 

Accordingly, the HHC Act restricted HHC from disposing of any 

health facility or real property of the City without consent from 

the Board of Estimate. "U.L. § 7385(6). 

It is undisputed that when the HHC Act was passed, the Board 

of Estimate had authority, under the City Charter, to consider both 

the business terms and the land use effects of any disposition of 

the City’s real property. Contrary to defendants’ claim, nothing 

in the language of the HHC Act or its legislative history suggests 

that there was any intention to limit the Board of Estimate’s 

plenary authority when it considered the disposition of the City’s 

real property by HHC. Rather, the HHC Act, while facilitating the 

  

and the City of New York. New York State Constitution Article 
XV1l, Section 3 & 4. 

2 See Letter from Mayor Lindsay to Governor Rockefeller, 
dated May 8, 1969, contained in Governor’s Bill Jacket 1969, 
Chapter 1016 at 10. 

? 1d. 8c 13 ("The corporation could not transfer or dispose 
Of . any’ health facility or real property acquired from or 
constructed for the City without public hearing and consent of the 
Board of Estimate").  



Clty’'s interest in‘ providing high quality health care tro the 

indigent, preserved City control of its real property through Board 

of Estimate review of both the business terms and the land use 

implications of any dlspoutelen of that property. 

Under the revised City Charter, the Board of Estimate’s 

authority is now divided. The Mayor has been granted authority to 

approve the business terms of any disposition of City property and, 

through the Uniform Land Use Review Procedure ("ULURP"),* the City 

Council has been granted the authority -- formerly held by the 

Board of Estimate -- to be the final decisionmaker in the review of 

the land use implications of a disposition of City property.’ 

Therefore, in light of this restructuring of City government since 

enactment of the HHC enabling legislation, the only interpretation 

Of the HHC Act that is consistent with its language and its 

purposes as reflected in the legislative history is this: the 

authority to consent to the business terms of any City real 

property by HHC lies with the Mayor, while the authority to review 

and approve or disapprove the land use effects and implications of 

any such transfer lies with the City Council through ULURP. 

  

NewYork City Charter § 197-c. For a thorough discussion 
of the applicability of ULURP to the disposition of New York City’s 
real property by HHC, see Plaintiffs’ Memorandum of Law in 
Opposition to Defendants’ Motion for Summary Judgment and in 
Support of Plaintiffs’ Motion for Summary Judgment at pp. 18-21 
[hereinafter Plaintiffs’ Opening Memorandum] and Plaintiffs’ Reply 
Memorandum of Law in Support of Plaintiffs’ Motion for Summary 
Judgment at pp. 3-9 [hereinafter Plaintiffs’ Reply Memorandum] . 

°* See Final Report of the New York City Charter Revision 
Commission (March 1990) at 19 [hereinafter New York City Charter 
Commission Final Report].  



  

Defendanig’ reliance upon § 1152(e) of the City Charter to 

argue to the contrary is unavailing. Section 1152 (e) provides that 

upon the dissolution of the Board of Estimate, the powers it 

exercised as set forth by any state or local law should devolve 

upon. the body, agency or Officer of the City charged with 

comparable and related powers and responsibilities under the 

Charter. The Board of Estimate had the power to review both the 

land use and the business terms of a disposition of property by 

HHC; both powers must devolve to the appropriate entities. Because 

the Charter devolves the power over land use to the Council through 

ULURP, and the authority to consent to the business terms to the 

Mayor, § 1152 requires a like interpretation of the HHC Act. 

ARGUMENT 
  

A. The HHC Act Provided for a Land Use Review of any 
Disposition by HHC of City Property 
  

The HHC Act clearly intended for there to be authority to 

conduct a land use review of any disposition of the target 

hospitals by HHC. Defendants’ unsupported and conclusory argument 

that the HHC Act withheld the authority to conduct a land use 

review is completely unsupported by the HHC Act. See U.L. § 

7385(6) 

The text of the HHC Act requires consent by the Board of 

Estimate to any HHC decision to dispose of City-owned property. 

U.L. § 7385(6) As defendants note in their opening memorandum, 

under the City Charter in effect when the HHC Act was enacted, the 

Board of Estimate had authority to review both the land use and the 

business terms of dispositions of City-owned property. Defendants’ 

4 

 



  

Opening Memorandum at 18; City Charter Commission Final Report at 

19; see generally Tribeca Community Associations Inc. v. New York 
  

State Urban Development Corporation, Index No. 20355 (April 1, 
  

1993 Sup.” Ct. "N.Y. . County) (attached to Plaintiffs’ Opening 

memorandum) . The former Charter § 384 provided: 

Disposal of property of the city. a. No property of the city 
may be sold, leased, exchanged or otherwise disposed of except 
with the approval of the board of estimate 

The HHC Act § 7385(6) provides: 

[NJo health facility or other real property acquired or 
constructed by the corporation shall be sold, leased, or 
otherwise transferred by the corporation . . . without the 
consent of the board of estimate of the city; 

It is obvious that the HHC Act was modeled upon the former Charter: 

both required Board of Estimate approval or consent prior to a 

disposition of the City’s real property. 

The Act itself thus does not limit the Board of Estimate’s 

power to consider the business terms of any disposition of City 

property. Instead, the Act required the consent of the Board of 

Estimate prior to any disposition of City property by HHC without 

any limitation upon the issues considered by the Board of Estimate 

in deciding whether to grant its consent. The Act granted the 

Board of Estimate the authority to consider the full panapoly of 

issues it would consider in any other disposition of city property: 

namely, the business terms and the land use impacts. 

Nor does the legislative history provide any support for the 

defendants’ argument. There are several explicit references in 

materials contained in the Governor’s Bill Jacket to HHC'’s power to 

 



sell, lease, or otherwise dispose of real property of the City. 

Each such reference is accompanied by an explanation of the limitation 

upon HHC’s power: the Board of Estimate must consent. Relevant 

quotes from the Governor’s Bill Jacket are listed below: 

* "The corporation could not transfer or dispose of any 
health facility or real property acquired from or 
constructed for the City without public hearing and 
consent of the Board of Estimate." Letter of Mayor 
Lindsay to Governor Rockefeller dated May 8, 1969, 
Governor’s Bill Jacket at 14 (urging passage) . 

"Real or personal property could be disposed of by sale, 
lease, or sublease but could not be transferred from the 
corporation without a public hearing and the approval of 
the Board of Estimate." Legislative Memorandum, 
Community Service Society of New York, Committee on 
Health, April 14, 1969, Governor’s Bill Jacket at 29 
(urging opposition). 

"The powers of the Corporation are set forth, including 
that of receiving direct payment for health services 
rendered; to borrow money and issue bonds but if for 

construction of a health facility, only on prior approval 
of the Mayor; to dispose of real property after public 
hearing and with consent of the Board of Estimate." 
Letter of State of New York Department of Health to 
Counsel to the Governor dated May 20, 1969, Governor’s 

Bill Jacket at 66 (recommending enactment) . 

"Mr. Lindsay also said that the corporation would not be 
authorized to sell or lease any hospital or health 
facility without the permission of the Board of Estimate, 
the same procedure now followed by the Health Services 
Administration." New Health Unit Urged by Mayor: Public Corporation 
Would Manage City Hospitals, New York Times, December 13, 1968, 
Governor's Bill Jacket at 178. 

The legislative history therefore illustrates that the Act intended 

to provide HHC power to dispose of real property of the City only 

with the consent of the Board of Estimate -- exercising its full 

powers of review. 

Indeed, it is notable that the procedure set forth in the HHC  



Act for disposing of the City’s real property by HHC was the same 

procedure followed by the Health Services Administration, the City 

agency that operated the municipal hospital system. Undoubtedly, 

when the Board of Estimate considered whether to approve of a 

disposition by the Health Services Administration of real property, 

the Board of Estimate had the authority to consider land use 

effects as it did in all other dispositions of City property. 

Defendants wunpersuasively seek to rely upon the 1985 

disposition of the R&S building at Bellevue hospital to support 

their argument that the Board of Estimate lacked authority under the 

HHC Act to consider the land use effects of a disposition of City 

property. This argument fails for several reasons. First, the 

Board of Estimate did consider the land use impacts of that 

disposition, see Supplementary Affidavit of Gail Benjamin, 

September 20, 1996; Appearance Notice for September 13, 1985 Board 

of Estimate Hearing annexed to Affirmation of Rachel D. Godsil, 

November 19, 1996. Second, the only point defendants can make is 

that the Board of Estimate did not subject the sublease itself to 

ULURP. ULURP was complied with, however, in the companion 

resolution followed by the Board of Estimate in approving the 

zoning change necessary for the purchase. Therefore, the 

disposition itself was subject to ULURP. See Board of Estimate 

Resolucion No. 13, Exhibit B of Affirmation of David Karnovsky, 

September 30, 1996. Finally, even if the Board of Estimate had 

chosen not to exercise its recognized land use powers in 

considering that sublease -- a conclusion plaintiffs dispute --  



  

such a decision would not support defendants’ argument that the 

Board of Estimate lacked those powers. Defendants’ argument flies 

directly in the face of the HHC Act which clearly intended for 

there to be consideration of the land use impacts of any 

disposition of City property by HHC. 

B. The Board of Estimate’s Authority Over Land Use Review 
Devolves to the City Council 
  

With the dissolution of the Board of Estimate, the City 

Charter now divides the authority to consent to dispositions of 

City-owned land between the Mayor and, through ULURP, the City 

Council. New York City Charter § 384 (a) & (b) (5); City Charter 

Commission Final Report at 19. Section 1152 (e) provides that upon 

dissolution of the Board of Estimate, the powers it exercised "set 

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

the terms of such law" are to "devolve upon the body, agency or 

officer of the city charged with comparable and related powers and 

responsibilities under" the Charter. New York City Charter § 

1152 (e) (emphasis added). The HHC Act requires the consent of the 

Board of Estimate prior to any disposition of the City’s real 

property... HHC Act 7582(6). 

Section 1152 (e) thus provides that, for purposes of the HHC 

Act, the Board of Estimate’s authority is divided as it is by the 

City Charter. Therefore, for purposes of the HHC Act, the Board of 

Estimate’s land use authority devolves to the City Council through 

ULURP. New York City Charter §8§ 197-c & 384 (a) & (b) (5); New York 

City Charter Commission Final Report at 19. 

 



  

Ignoring the clear language of § 7385(6) of the HHC Act, 

defendants make the conclusory assertion -- refuted above -- that 

the Board of Estimate had only the power to approve the business 

terms of transactions. under § :7385(6) and “that .§ 1152(e) 

accordingly requires devolution of the Board of Estimate’s consent 

powers under § 7385(6) only to the Mayor and only with respect to 

business terms. Defendants’ Reply Memorandum at 12. Because 

defendants lack any support in the HHC Act for the proposition that 

the Board of Estimate’s consent powers are so limited, their 

argument under § 1152(e) is plainly wrong. 

The HHC Act intended for a land use review of dispositions by 

HHC of City-owned property. The target hospitals are City-owned 

property. The City Charter provides that such a review should take 

place under the auspices of the ULURP process with final 

decisionmaking authority residing in the City Council. Plaintiffs 

are thus entitled to summary judgment as a matter of law. 

CONCLUSION 
  

For the foregoing reasons, it is respectfully requested that 

defendants’ motion for summary judgment be denied, and plaintiffs’ 

cross-motion for summary judgment be granted, together with such 

other and further relief as the Court shall deem just and proper. 

Dated: New York, New York 

November 19, 1996 

RESPECTFULLY SUBMITTED, 

KENNETH KIMERLING 

PUERTO RICAN LEGAL DEFENSE & 

EDUCATION FUND, INC. 

99 Hudson St..,: 14th Floor 

New York, New York 10013 

9 

 



  

(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 8t., 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 

10