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SUNY fights back against recent LICH court orders

October 15, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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Last week, a Brooklyn Supreme Court justice issued an order allowing Brooklyn community groups and the New York City Public Advocate to assist in the selection of a new operator for the struggling Long Island College Hospital (LICH). The State University of New York-Downstate (SUNY Downstate), LICH’s present operator, has issued appeals requesting a stay on the appointment of any operator and any other disruptions to LICH’s assets.

In 2011, Brooklyn Supreme Court Justice Carolyn Demarest granted a petition allowing LICH to transfer its assets to SUNY on the express promise by SUNY that it would keep LICH a functioning hospital. Earlier this year, SUNY announced its desire and plans to close LICH, prompting Demarest to revisit her 2011 order.

Believing that in its 2011 asset transfer request, SUNY possessed a “more sinister purpose to seize [LICH’s] assets and dismantle the hospital,” Demarest ordered all of LICH’s assets be transferred back, that a new operator be appointed or assigned to LICH to receive and manage all of its assets and that a trust be established to control the assets.

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Brooklyn community groups and Public Advocate Bill de Blasio filed a successful petition in the case, asking to become a part of the process to find a new LICH operator.  Last week, SUNY filed papers, in the Appellate Division, 2nd Department, attempting to halt the process of change that Demarest ordered for LICH.

Citing, as an example, “factual errors” in one of Demarest’s orders, SUNY argued in its writ of prohibition that Demarest should be prohibited from further ruling on any cases involving LICH and SUNY as related to the requested closure and ongoing fight to keep the hospital open. SUNY asserts that Demarest’s recent orders in the LICH/SUNY case amounts to the taking of its “property without due process.” Demarest is acting outside of her duties and in excess of her jurisdiction, SUNY contends.

Further, SUNY requests that Demarest be “refrained from revoking the approval she granted in 2011 of the transfer of substantially all of the assets of … LICH … directing or otherwise interfering with the services … provided at [LICH and] … exercising dominion or control over any of [LICH’s] assets.”

In addition, SUNY asks that Demarest be prevented from issuing orders not requested by any party, and that all of Demarest’s orders related to transferring LICH assets back to LICH be vacated.

“There is simply no constitutional, statutory, common or administrative law that empowers a court to ‘revoke’ a 27-month-old order,” SUNY argued in its moving papers.

In addition to the community groups and public advocate, Concerned Physicians of LICH, New York State Nurses Association and Local 1199SEIU (representing non-medical employees), have also submitted papers requesting permission from the court to be a part of the process to seek a new LICH operator. It is unclear if, given SUNY’s recent appeals, Demarest has issued a ruling on their request.

Abrams Fensterman in Brooklyn and Hogan Lovells in Manhattan represent SUNY. Proskauer Rose represents LICH.

In a related though not connected case, Brooklyn Supreme Court Justice Johnny Lee Baynes, issued an order on Friday permanently enjoining SUNY and its associates, from closing LICH. Baynes also, in contrast to Demarest, found that de Blasio, who has persistently been a presence in the LICH/SUNY legal battle, did not have standing, or a right to file suit, in the case, and dismissed all claims brought by de Blasio. “We are immensely satisfied with the merits of the ruling,” said a spokesperson from de Blasio’s office.  

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