Brooklyn judge mulls arguments made by LICH nurses vs. NYU
SUNY’s McCall frets NYU ‘might decide not to do this’
State Supreme Court Justice Johnny Lee Baynes heard arguments in Brooklyn court on Thursday in a battle over whether or not NYU-Langone Medical Center violated a promise to rehire Long Island College Hospital (LICH) nurses at a the ER after SUNY shut down the hospital.
In the meantime, the sale of LICH to developer Fortis Property Group remains on hold.
Justice Baynes has up to 60 days to deliver the decision. He is pushing for both sides to reach a settlement out of court, however. “I don’t know if that will happen,” he said. ‘The court may well be compelled to make a decision.”
NYU is part of a deal SUNY made to sell the LICH campus in Cobble Hill to Fortis. While there will be no hospital, NYU plans to build an ambulatory health facility at the site.
After the hearing on Thursday, H. Carl McCall, chair of the SUNY board of trustees, fretted that the nurses’ suit was gumming up the deal.
“NYU is offering substantial services. They might decide not to do this,” he said.
SUNY continues to operate the walk-in emergency department at the site past its Sept. 1 deadline, while the argument works its way through court.
Attorneys make their cases
NYSNA attorney Richard Seltzer argued that Fortis’ proposal to buy LICH was explicit in its promise that NYU and another health partner, Lutheran Family Health Center (LFHC) would rehire LICH nurses.
Seltzer said 19 applicants from LICH met NYU’s employment requirements, and just seven were selected.
He pointed out that Fortis’ bid for LICH contained the words, “NYULMC and LFHC will independently contract with NYSNA nurses through an intermediate entity or staffing company” to “help maximize the number of NYSNA nurses continuing to work at LICH and thereby help preserve the legacy of excellent care provided by LICH.”
“This was part of the proposals scored by evaluators,” Seltzer said. “It was material to the RFP. NYU and SUNY are acting as if these words don’t exist. This is a bait-and-switch, your honor.”
Though an affidavit submitted by NYU showed “a tornado of activity regarding hiring staff at the emergency department,” NYU never contacted LICH nurses, he said.
Justice Baynes, through questioning, confirmed the point that a staffing company never contracted with LICH nurses. He also noted that the clause said NYU “will” contract with NYSNA. “It could have been ‘shall’ or ‘may.’ What do you believe that means?” he asked.
Attorney Frank Carone, representing SUNY, responded that nothing in the paragraph said NYU must hire NYSNA nurses for the interim emergency department. “NYU will be building a $150 million permanent facility,” he said. “The final deal has not been approved by the attorney general, the state comptroller, the 510-511 petition [required for not-for-profits]. It’s premature. We’re only talking the temporary emergency department.”
He also argued that providing “continuity of care” does not mean rehiring LICH nurses, but keeping the ER in continuous operation for the community. He said NYU had increased the square footage of their ambulatory footprint to 135,000 square feet of “cutting-edge care, versus a skeleton staff run by SUNY.”
Edward Spiro, also representing SUNY, claimed that NYSNA was seeking to make the NYU facility “a union shop. “It’s a union dispute.” He said that SUNY had offered to hire LICH nurses at other facilities in Brooklyn, but NYSNA rejected the offer.
He further said that employment of LICH nurses may have been in the bid but it wasn’t in the stipulation or RFP. “It is simply an expression of intent on the part of what NYU was considering. It is not mandatory. To the extent that the language was included, it was gratuitous.”
Justice Baynes said, “You say gratuitous. Once you put it out there and individuals relied on it to their detriment, what do we have?”
While Spiro argued no one relied on the language in the proposal, Seltzer countered that it was a key clause. “If there’s no obligation, the clause is meaningless. Then why is it there?” Seltzer asked. “SUNY says it can pick and choose what’s important, and take that role from the evaluators.”
He also disputed Spiro’s contention that the disagreement was a labor dispute. “SUNY is not the employer of LICH nurses; an entity called Staffco is.”
“We’re talking about the enforcement of a settlement,” he said. He added, “When the transaction closes [and LICH is sold to Fortis], SUNY can’t do anything. The horse is not only out of the barn, it’s out of the country.”
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