Friends of P.S. 163, Inc. v. Jewish Home Lifecare

• Decision Date: 09 December 2015
• Docket Number: No. 100546/15.,100546/15.
• Citation: 41 N.Y.S.3d 449 (Table)
• Parties: The FRIENDS OF P.S. 163, INC.; the P.S. 163 School Leadership Team; Joshua Kross; Miles Kross, by his father, Joshua Kross; Stella Kross, by her father, Joshua Kross; Eugenia Fingerman; Elijah Fingerman, by his mother, Eugenia Fingerman; Giselle Sanchez; Giovanni Feliciano, by his mother, Giselle Sanchez; Lucindy Cuevas; Anneli Lopez, by her mother, Lucindy Cuevas; Kevin Richardson ; Cameron Richardson, by his father, Kevin Richardson ; Daniel Webster; Daniel J. Webster, by his father, Daniel Webster; Daniel Holt; and Rachel Baker–Holt, by her father, Daniel Holt, Petitioners, v. JEWISH HOME LIFECARE, Manhattan, New York State Department of Health, 156 W. 106th Street Holding Corp., 102 W. 107th Corp., & PWV Owner, LLC, Respondents. Nathaniel Robert Livingston by his parent Daisy Wright, Oliver Wright Livingston, by his parent Daisy Wright, Elizabeth Wright, Bernie Wright by his parent Elizabeth Wright, Vivian Dee, Sonia Garcia, Joan Heitner, Patricia Loftman, Lillian Pryor, Eileen Salzig, Valeria Spann and Walter Reinhardt, Petitioners, New York State Department of Health, Howard Zucker, as Acting Commissioner of the New York State Department of Health, Jewish Home Lifecare, Manhattan, PWV Owner, LLC, 156 W. 106th Street Holding Corporation, and 102 W. 107th Corporation, Respondents. Nathaniel Robert Livingston by his parent Daisy Wright, Oliver Wright Livingston, by his parent Daisy Wright, Elizabeth Wright, Bernie Wright by his parent Elizabeth Wright, Vivian Dee, Sonia Garcia, Joan Heitner, Patricia Loftman, Lillian Pryor, Eileen Salzig, Valeria Spann and Walter Reinhardt, Petitioners, v. New York State Department of Health, Howard Zucker, as Acting Commissioner of the New York State Department of Health, Jewish Home Lifecare, Manhattan, PWV Owner, LLC, 156 W. 106th Street Holding Corporation, and 102 W. 107th Corporation, Respondents.
• Court: New York Supreme Court

41 N.Y.S.3d 449 (Table)

The FRIENDS OF P.S. 163, INC.; the P.S. 163 School Leadership Team; Joshua Kross; Miles Kross, by his father, Joshua Kross; Stella Kross, by her father, Joshua Kross; Eugenia Fingerman; Elijah Fingerman, by his mother, Eugenia Fingerman; Giselle Sanchez; Giovanni Feliciano, by his mother, Giselle Sanchez; Lucindy Cuevas; Anneli Lopez, by her mother, Lucindy Cuevas; Kevin Richardson ; Cameron Richardson, by his father, Kevin Richardson ; Daniel Webster; Daniel J. Webster, by his father, Daniel Webster; Daniel Holt; and Rachel Baker–Holt, by her father, Daniel Holt, Petitioners,
v.
JEWISH HOME LIFECARE, Manhattan, New York State Department of Health, 156 W. 106th Street Holding Corp., 102 W. 107th Corp., & PWV Owner, LLC, Respondents.

Nathaniel Robert Livingston by his parent Daisy Wright, Oliver Wright Livingston, by his parent Daisy Wright, Elizabeth Wright, Bernie Wright by his parent Elizabeth Wright, Vivian Dee, Sonia Garcia, Joan Heitner, Patricia Loftman, Lillian Pryor, Eileen Salzig, Valeria Spann and Walter Reinhardt, Petitioners,

New York State Department of Health, Howard Zucker, as Acting Commissioner of the New York State Department of Health, Jewish Home Lifecare, Manhattan, PWV Owner, LLC, 156 W. 106th Street Holding Corporation, and 102 W. 107th Corporation, Respondents.

Nathaniel Robert Livingston by his parent Daisy Wright, Oliver Wright Livingston, by his parent Daisy Wright, Elizabeth Wright, Bernie Wright by his parent Elizabeth Wright, Vivian Dee, Sonia Garcia, Joan Heitner, Patricia Loftman, Lillian Pryor, Eileen Salzig, Valeria Spann and Walter Reinhardt, Petitioners,
v.
New York State Department of Health, Howard Zucker, as Acting Commissioner of the New York State Department of Health, Jewish Home Lifecare, Manhattan, PWV Owner, LLC, 156 W. 106th Street Holding Corporation, and 102 W. 107th Corporation, Respondents.

No. 100546/15.

Supreme Court, New York County, New York.

Dec. 9, 2015.

Rene Kathawala and J. Peter Coll, Jr. from Orrick, Herrington & Sutcliffe LLP, for petitioners.

Steven Russo from Greenberg Traurig, for respondent Jewish Home Lifecare, Manhattan.

Yueh-ru Chu and Norman Spiegel from the office of the Attorney General of the State of New York, for respondents NYSDOH and Acting Comm'r Zucker.

JOAN LOBIS, J.

These Article 78 proceedings were brought to challenge the determination of respondent New York State Department of Health (DOH) to approve an application by respondent Jewish Home Lifecare, Manhattan (JHL) to construct a twenty-story nursing home (proposed facility or project) at 125 West 97th Street in Manhattan's Upper West Side (proposed site). Petitioners, including an organization of parents and teachers of children attending a public school adjacent to the proposed site (the P.S. 163 proceeding), and residents of buildings near the proposed site (the Tenants proceeding), seek an order and judgment vacating and aning DOH's determination, alleging that DOH failed to comply with the requirements of the State Environmental Quality Review Act (SEQRA) (Environmental Conservation Law [ECL] § 8–0101 et seq. ). Respondents JHL, DOH, Howard Zucker, and PWV Owner, LLC, oppose the petitions,¹ which are consolidated for purposes of their disposition.

BACKGROUND

Petitioner Friends of P.S. 163, Inc. (PTA) is the parent-teacher organization representing the interests of parents and teachers of students at P.S. 163, an elementary school located at 163 West 97th Street, next to the proposed site. Petitioner P.S. 163 School Leadership Team (SLT), made up of the school principal, PTA president, teachers and parents, is the school body responsible for setting the school's educational agenda in line with its budget. The individual petitioners in the P.S. 163 proceeding include students attending P.S. 163 and their parents (collectively, with PTA and SLT, P.S. 163). In the Tenants proceeding, petitioners are individuals residents (collectively, the tenants) of, variously, 784 Columbus Avenue, 788 Columbus Avenue, 120 West 97th Street, or 765 Amsterdam Avenue, buildings located adjacent to or in the vicinity of the project site.

Respondent JHL, a not-for-profit corporation and member of the Jewish Home Lifecare System, provides healthcare services and assistance for elders in the New York metropolitan area. It currently operates a 514–bed nursing home located at 120 West 106th Street in Manhattan (existing facility). Respondents 156 W. 106TH Street Holding Corp. and 102 W. 107TH Corp. are holding companies established by JHL, which own the land at 120 West 106th Street. Respondent DOH is a state agency with the authority, among other things, to approve construction of health care facilities, including nursing homes. See Public Health Law § 2802. Respondent Howard Zucker, sued solely in the Tenants proceeding, is Acting Commissioner of DOH.

Because of the age and physical condition of its existing facility, JHL has been seeking since 2006 to replace it. In late 2006, JHL applied for DOH approval to rebuild the existing facility on the West 106th Street site, and received approval in 2008, but withdrew its plans, for financial reasons, following the global economic recession. JHL subsequently applied to build a new facility at a site on 100th Street between Columbus and Amsterdam Avenues, after it was offered a “land swap” deal for its 106th Street property. JHL's application to build on the 100th Street site was approved in 2010, but that project did not go forward because the 100th Street site did not meet zoning requirements. JHL now seeks, also as a result of a land swap deal for its 106th Street property, to build the proposed facility on an approximately seventy-three acre parcel of land, owned by respondent PWV Owner, LLC, on 97th Street between Columbus and Amsterdam Avenues.

The proposed site is located on the south side of a “superblock” bounded by 100th Street on the north, 97th Street on the south, Amsterdam Avenue on the west, and Columbus Avenue on the east. Park West Village, a residential apartment complex within the superblock, includes three buildings, located at 784 Columbus Avenue, 788 Columbus Avenue, and 792 Columbus Avenue, adjacent to and north of the project site. Other residential apartment buildings are located near the proposed site to the west and across 97th street to the south. The superblock also contains a playground, a library, a church, and on the east, extending from 97th Street to 100th Street on Columbus Avenue, a high rise apartment building and a complex of retail stores, including a Whole Foods supermarket. The proposed site was formerly a parking lot used by residents of Park West Village, and is now a vacant lot.

P.S. 163, a three-story building, with two trailers annexed to the main building used for additional classrooms, is immediately adjacent to the proposed site. The school is a pre-kindergarten through fifth grade elementary school, with about 600 students between the ages of three and eleven. The student body is racially and economically diverse, and includes students from a special education school serving severely disabled children. According to the affidavit of Joshua Kross, co-president of the PTA, at least 14% of its students have a learning disability, and more than 7.5% of its students have asthma, a higher than average incidence for New York City schools.

In February 2012, pursuant to Public Health Law § 2802(1), JHL submitted a Certificate of Need (CON) application to DOH, requesting approval to build the proposed facility to replace its existing facility. In its application, JHL maintains that there is an urgent need for a new facility because its existing facility's buildings, constructed between 1898 and 1964, are outdated and inefficient, require major infrastructure replacement, and are negatively affecting residents' mobility, privacy, independence, and quality of life.

JHL's proposed project entails construction of a 20–story, 376,000 square foot building, which would accommodate 414 beds, 100 fewer than the existing facility, with 264 long-term care beds on the 9th through 19th floors, and “subacute,” or short-term rehabilitation care on the 4th through 8th floors. The remaining floors would contain shared common areas, administrative offices, and service and support areas; and a rooftop garden would be available for residents and their visitors. The ground floor level would include green space along the west side of the building, open to the public. Access to the building would include a public pedestrian entrance on West 97th Street, and an entrance at the rear of the building. Park West Drive, a north-south access lane within Park West Village, running on the east side of the project site from 97th to 100th streets, would provide access for vehicles, including ambulances and taxis, to the turnaround driveway and entrance in the rear of the building. Service access and truck loading docks would be on 97th Street. Construction of the proposed facility was estimated to take approximately thirty months to complete.

The design for JHL's proposed facility incorporates an innovative model for nursing home care, known as the “Green House” model, which is based on creating a more home-like environment than exists in traditional nursing homes, and providing “more enhanced interaction and more focused attention and care between residents and staff.” Findings Statement, ¶ 18. Under this model, each residential floor of the proposed facility would be organized into small “homes,” for a maximum of twelve residents,...