Physicians seek to overturn hospital’s sale to Fortis
By Mary Frost
Brooklyn Daily Eagle
The long legal battle surrounding the State University of New York’s (SUNY) sale of Long Island College Hospital (LICH) in Cobble Hill to a developer is not over.
The Supreme Court Appellate Division in Brooklyn has set a Friday, March 27 deadline for the next step in an appeal seeking to overturn SUNY's decision to award the hospital property to Fortis Property Group.
The Concerned Physicians of LICH, one of the groups fighting the sale of the hospital for more than two years, is trying to annul SUNY’s decision to award the now-shuttered site to Fortis.
State Supreme Court Justice Johnny Lee Baynes denied an earlier bid by community litigants to overturn the award. Concerned Physicians appealed this decision, and SUNY filed to dismiss the appeal. Now, Concerned Physicians has filed to deny SUNY’s motion.
Frank Carone, SUNY’s attorney, downplayed the deadline. “Friday is not a hearing. It’s not even an oral argument on a substantive motion. Friday is merely a deadline for SUNY to put in a reply.”
The doctors group says in its filing that SUNY’s methodology didn’t match that described in the original stipulation hammered out after much litigation, and the Request For Proposals (RFP) that followed.
According to Concerned Physicians, the mathematical scoring method required by the stipulation would put another bidder, Trindade Value Partners, at the top of the list. Trindade initially was ranked sixth by the bid evaluators. Trindade's proposal included a full-service hospital.
“We gave up contempt charges against SUNY to get a new RFP with the purpose of getting a full-service hospital,” Concerned Physicians member physician Dr. Douglas Sepkowitz, who filed the appeal on the group’s behalf, told the Brooklyn Eagle.
“It was understood by all, overseen by Justice Baynes, approved and applauded by the newly-elected mayor. But the RFP had rules: more points were to be given to full-service hospital proposals. That’s not what we got. The deal made in February did not abide by the rules of the RFP.”
Derek Oubre, Trindade's president, told the Brooklyn Eagle that the stipulation required the community litigants’ portion of the technical score to equal 49 percent of the total score.
SUNY’s mathematical methodology, described in the filing, “manipulates the scores” to give greater weight to the financial score than described in the stipulation, he says.
“Any score that doesn’t meet that criteria should be thrown out,” he said. “All we’re asking the judge to do is to uphold the stipulation.”
The plaintiffs also say that SUNY changed the meaning of “financial” in the financial rankings to consider only the price offered for the hospital campus.
Oubre says that Trindade’s $1.8 billion in financing for renovation of the facility, in addition to a purchase price of $210 million, should have been factored into the financial score.
SUNY contests Concerned Physicians standing
SUNY holds that neither Concerned Physicians nor Dr. Sepkowitz have the standing to appeal the decision.
“Neither Dr. Sepkowitz nor [Concerned Physicians] were parties in that proceeding brought by the community groups. It is only the parties in that proceeding that can appeal,” Carone told the Brooklyn Eagle. He said that (legal rule) “CPLR 5511 states that only ‘aggrieved parties...’ may appeal. SUNY has filed a motion asking the Appellate Division to dismiss the pending Notice of Appeal on this threshold but all important issue of ‘lack of standing.’"
Eric Creizman, attorney for Concerned Physicians, disputes this contention. “SUNY is mistaken, he wrote in his filing. Concerned Physicians had been part of the parallel proceedings and changed attorneys several times as the LICH legal cases continued, he said.
The group eventually joined forces with the pro bono attorney representing seven community groups, Jim Walden, then with Gibson Dunn. At a June 2014 hearing, Walden stated he appeared on behalf of “the community groups, public advocate, and Concerned Physicians,” Creizman says, thus establishing standing.
NYU Langone has been running a walk-in emergency department at the site since last June and plans to expand the facility in 2017 or 2018 to include a “freestanding ER,” outpatient ambulatory surgery, doctors’ offices, labs and a cancer center.