McCormick v. Axelrod

CourtNew York Court of Appeals
Citation453 N.E.2d 508,466 N.Y.S.2d 279,59 N.Y.2d 574
Parties, 453 N.E.2d 508 In the Matter of the Application of Louise McCORMICK et al., Appellants, v. David AXELROD, as Commissioner of New York State Department of Health, et al., Respondents.
Decision Date07 July 1983

Page 279

466 N.Y.S.2d 279
59 N.Y.2d 574, 453 N.E.2d 508
In the Matter of the Application of Louise McCORMICK et al.,
David AXELROD, as Commissioner of New York State Department
of Health, et al., Respondents.
Court of Appeals of New York.
July 7, 1983.

[59 N.Y.2d 576]

Page 280

[453 N.E.2d 509] Kalman Finkel, Helaine Barnett, Marshall Green and Helen Hershkoff, New York City, for appellants.

[59 N.Y.2d 577] Robert Abrams, Atty. Gen. (Melvyn R. Leventhal, Barbara B. Butler and Marion R. Buchbinder, Asst. Attys. Gen., of counsel), for David Axelrod, respondent.

Irwin Kanassik, New York City, for Beth Rifka and another, respondents.



This is a motion by petitioners in the above-captioned appeal to hold respondents Commissioner of the New York State Department of Health, Beth Rifka, Inc., and the administrator of Beth Rifka Nursing Home in civil contempt for having violated the terms of a stay order issued by this court in connection with the appeal. The motion is hereby granted. The importance of the issues raised prompts us to publish this opinion describing our rationale for this disposition.


On November 22, 1982, the Commissioner of Health ordered the revocation of the operating certificate of respondent Beth Rifka, Inc., as operator of the Beth Rifka Nursing Home on Staten Island, based upon numerous violations directly related to patient care. The commissioner's order directed the discharge of all patients from the nursing home by December 1, 1982, leaving the nursing home itself responsible for its continued operation. Two [59 N.Y.2d 578] proceedings were instituted on the basis of this order. Beth Rifka commenced an article 78 proceeding challenging the determination to revoke its operating certificate. This proceeding was transferred to the Appellate Division for decision. Several residents of the nursing home commenced a separate article 78 proceeding, seeking an order pursuant to section 2810 (subd. 2, par. a) of the Public Health Law directing the commissioner to appoint a receiver to supervise the operation of the nursing home and discharge of the remaining patients. Named as respondents were the commissioner, Beth Rifka, Inc., and the nursing home's administrator, Sally Gearhart. Although Beth Rifka[453 N.E.2d 510] and Ms. Gearhart had been served with all papers in this proceeding, they never appeared. Supreme Court denied petitioners' application.

The two matters were argued together in the Appellate Division. At that time, Beth Rifka orally joined in petitioners' request that a receiver be appointed. On January 20, 1983, the Appellate Division decided both matters, confirming the commissioner's determination to revoke Beth Rifka's operating certificate (Matter of Beth Rifka, Inc. v. Axelrod, 91 A.D.2d 1143, 458 N.Y.S.2d 715) and affirming Supreme Court's denial of petitioners' application to require

Page 281

the commissioner to appoint a receiver (Matter of McCormick v. Axelrod, 91 A.D.2d 1144, 458 N.Y.S.2d 716). The commissioner, by letter dated January 27, 1983, directed that the patients be discharged by February 3.

On January 28, 1983, petitioners presented an order to show cause to an Associate Judge of this court seeking a temporary stay of the involuntary discharge of the nursing home's residents pending decision on petitioners' motion for leave to appeal to this court and for a stay in connection therewith. Counsel for the commissioner and petitioners appeared at the hearing on the order to show cause, but no one appeared on behalf of the nursing home or its administrator, despite an earlier representation to the contrary. Beth Rifka had decided to seek leave to appeal and a stay in connection with its own proceeding against the commissioner. At the conclusion of the hearing, the matter of a temporary stay was resolved by the commissioner's agreement to forbear from taking any action to discharge the [59 N.Y.2d 579] residents of Beth Rifka until a decision was rendered by this court on petitioners' motion. Respondents were ordered to show cause why an order should not be made granting petitioners leave to appeal to this court and staying the involuntary discharge of the remaining residents at Beth Rifka pending determination of the appeal. This order was served upon the commissioner, the nursing home and its administrator, in accordance with its direction to that effect.

On February 17, 1983, this court denied Beth Rifka's motion for leave to appeal in its article 78 proceeding (58 N.Y.2d 607, 460 N.Y.S.2d 1027, 447 N.E.2d 87). We also granted petitioners' motion for leave to appeal and for a stay. Our order provides: "ordered, that the said motion for a stay be and the same hereby is granted and all steps and/or proceedings to enforce the Appellate Division order of affirmance dated January 21, 1983, or to effect the involuntary discharge of the remaining residents at Beth Rifka Nursing Home stayed pending hearing and determination of the appeal herein."

Despite this order and on the following day, by lunchtime, all remaining residents of Beth Rifka including petitioners had been discharged and transferred to other nursing homes.

Petitioners then made the present motion to hold David Axelrod, as Commissioner of Health, Beth Rifka, Inc., as operator of the nursing home and Sally Gearhart, as its administrator, in civil contempt of the order of this court, 1 which petitioners alleged had been violated by the involuntary transfer of the remaining residents. The allegations of possibly contumacious conduct having been set forth by petitioners sufficiently to warrant further inquiry, we ordered the parties to present evidence on the issues raised at a hearing before Honorable Joseph F. Gagliardi, Justice [59 N.Y.2d 580] of the Supreme Court and administrative Judge of the Ninth Judicial District.

Following conferences related to discovery procedures and possible stipulations, a two-day hearing was held, during which [453 N.E.2d 511] testimony was taken at the nursing homes where petitioners now reside and at the Westchester County Courthouse. Justice Gagliardi's report, summarizing the evidence and reporting his factual findings and conclusions, was delivered to this court on June 1, 1983.

The hearing focused primarily upon whether and to what extent the various respondents had knowledge of this court's February 17 order and whether their conduct violated its express terms. The record indicates that on the afternoon of February 17, counsel for all parties learned of the disposition of the relevant motions. Helaine

Page 282

Barnett, the Legal Aid attorney representing petitioners, testified that she had a telephone conversation that afternoon with Irwin Karassik, the attorney for Beth Rifka and Ms. Gearhart. Mr. Karassik asked her to have Legal Aid arrange funding for the continued operation of the nursing home. Although Mr. Karassik testified that he informed Ms. Barnett of his belief that this court's stay did not in any way restrain his client's conduct, Ms. Barnett emphatically denied that the information was communicated to her, until after all patients had been discharged.

At about the same time, Department of Health personnel learned that this court had granted petitioners a stay. Carolyn Scanlan, Associate Director of the Division of Health Facility Standards and Control in the office of Health Systems Management, testified that she never learned the precise terms of the court's order, but thought that it prohibited the department only from closing the facility and itself discharging the patients. Ms. Scanlan called Elaine Kesner, then long-term care program director in the department's New York City area office and informed her that a stay had been granted.

The testimony of the three petitioners indicates that, during the evening hours of February 17, they were informed by Ms. Gearhart and other personnel that they would have to leave the following morning. Their belongings were put into cardboard boxes or plastic bags. Petitioners[59 N.Y.2d 581] were quite distressed at this news and all had difficulty sleeping that night. They all suffered varying degrees of emotional upset.

The following morning, Ms. Scanlan realized that the Beth Rifka staff might simply abandon its remaining residents, and had Department of Health staff contact the New York City office to ensure that monitoring of the facility would continue. Shortly thereafter,...

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