Appellate Division rules SUNY must keep LICH open, but not entirely

SUNY must maintain Friday’s service level

July 23, 2013 By Mary Frost Brooklyn Daily Eagle

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Appellate Division Judge Robert Miller late Monday ordered SUNY Downstate to maintain the level of service at Long Island College Hospital (LICH) that was provided at the hospital as of 4 p.m. on Friday.

Downstate had been trying to empty out the hospital over the weekend in order to close it entirely by July 29.

Public Advocate Bill de Blasio said the order upheld the Temporary Restraining Order (TRO) that had been issued on Friday to keep Long Island College Hospital (LICH) open. Friday’s TRO, which ordered SUNY to maintain staffing at LICH and allow ambulance delivery to the ER, had been issued by Supreme Court Justice Johnny Lee Baynes.

“This is clearly a vindication,” de Blasio said as he read Judge Miller’s decision to a crowd clustered under umbrellas outside the Appellate Court on Monroe Place in Brooklyn Heights at 6 p.m. on Monday.

SUNY spokesperson Robert Bellafiore told the Brooklyn Eagle late Monday, however, “Our motion to vacate the order was granted and was modified slightly. We do not have to bring ambulances back, restore residents or take any of the steps that were contained in the earlier lower court orders. Nor must we defer to the views of the LICH staff. All we need to do is keep services as they were late Friday afternoon and that means virtually no change from the way they are today.”

Over the weekend Downstate, despite the TRO, had repeatedly attempted to transfer LICH patients to other facilities, remove hospital equipment and install locks on ER doors.

Hospital staff said they called the NYPD twice over the weekend to keep personnel hired by SUNY from walking away with their patients. “Nurses were standing guard over the patients –- they had to call the police,” said Julie Semente, an intensive care nurse at LICH for the last 20 years.

Another spokesman for SUNY Downstate, Steven Greenberg, told the New York Times that no attempts had been made to move patients on Saturday. The Brooklyn Eagle, however, photographed an elderly patient being wheeled on a stretcher outside the hospital on Saturday afternoon. It was not clear as to where she was being transported.

De Blasio, in the midst of a campaign for Mayor, trekked to two different courts on Monday. In the morning, he filed an amended petition at the Supreme Court to prevent the shutdown of LICH and to hold SUNY accountable for violating Friday’s TRO. The amended petition included affidavits from six doctors and nurses at LICH citing examples of SUNY’s violations, including orders to discharge patients deemed unsuitable for transfer because of their frail condition.

The clerk for Justice Baynes affirmed early Monday “that the Temporary Restraining Order remains in effect and has not been stayed—blocking moves to close LICH,” de Blasio’s office said.

In the afternoon, de Blasio headed to the Appellate Division on Monroe Place in Brooklyn Heights to receive Judge Miller’s order. He emphasized that the order was just one piece of a strategy to come up with a long-term solution to Brooklyn’s health care crisis. De Blasio said he was headed back to Justice Baynes’ chambers on Tuesday for a conference regarding the amended filing.

De Blasio also introduced a pro bono member of LICH supporter’s legal team, Jim Walden, a Brooklyn Heights resident and a litigation partner at Gibson, Dunn & Crutcher. Walden said that Judge Miller’s instructions “preserve the status quo as of Friday.”

“Tomorrow’s revised filing will make it clear that the Department of Health acted illegally” by approving Downstate’s plan to close LICH before the required 90-day waiting period was over, Walden added.

Court orders have been flying fast and furious since Friday. To summarize:
– Supreme Court Justice Johnny Lee Baynes issued a TRO on Friday at de Blasio’s request.
– On Monday morning, de Blasio filed an amended filing calling for sanctions against SUNY Downstate; the clerk for Justice Baynes affirmed that the Temporary Restraining Order remains in effect.
– SUNY filed for a stay at the Appellate Court at 4 p.m. Monday.
– Appellate Division Judge Robert Miller late Monday ordered Downstate to maintain LICH’s staffing and service levels as they were on Friday.
– A conference with Justice Baynes was scheduled for Tuesday regarding the amended filing.
– The issue will be formally considered on Thursday before Justice Baynes.
– Brooklyn Supreme Court Justice Carolyn E. Demarest has ordered Downstate to present a full accounting of all LICH property, asset and fund transactions no later than August 5.

Downstate, in East Flatbush, obtained permission last week from the state Department of Health to close LICH, a 155-year-old Cobble Hill hospital it took over two years ago.

LICH serves a swath of Brooklyn stretching from Red Hook to the Brooklyn Navy Yard, encompassing brownstone neighborhoods like Brooklyn Heights and Cobble Hill along with Downtown Brooklyn.

Amidst almost-daily protests and legal actions by LICH supporters (another rally is planned for Wednesday at 4 p.m. in Cadman Plaza Park), Downstate has been dismantling LICH in order to “monetize” its valuable real estate assets as part of its own survival plan.

Seven health-related organizations have expressed interest in taking over LICH, but Downstate has not revealed who they are to local representatives. Health care advocates and local representatives want to transition to a new operator while LICH is still in operation, as happened when SUNY Downstate took over LICH’s operation from Continuum Health Partners.

Updated with a statement from SUNY at 9:30 p.m. Monday. Update to clarify which court heard Monday’s appeal at 5:15 a.m. Tuesday.