People v. Dobbs Ferry Medical Pavillion Inc.
| Decision Date | 17 April 1972 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. DOBBS FERRY MEDICAL PAVILLION INC. and Jerry Zucker, Defendants. |
| Court | New York Supreme Court |
Louis J. Lefkowitz, Atty. Gen., New York City, for plaintiff.
London, Buttenwieser & Chalif, New York City, for defendants.
This is a motion for an order pursuant to Public Health Law, §§ 2801-a and 2801-b, and Business Corporation Law, § 1115, restraining the defendants from performing abortions or otherwise operating an abortion clinic pending determination of the action.
This is a companion motion to that made in the case of People v. Hatchamovitch, et al., d/b/a Pelham Medical Group, decided this date, in which the People also seek to enjoin the alleged operation of an abortion clinic in violation of the Public Health Law. Because of the distinguishable facts attendant to the Pelham Medical Group, the motions, although argued together, have been decided in separate opinions.
The defendant, Dobbs Ferry Medical Pavillion Inc., is a New York corporation whose office is located on the top floor of a medical building located at 88 Ashford Avenue, Dobbs Ferry, New York. The People claim that the defendant corporation specializes in early pregnancy terminations and operates as a commercial and independent facility. There is no doubt that abortions are being conducted in this facility. The startling figure of 700 a month was mentioned in oral argument by the People based on records required to be filed with the State Health Department. Drs. Robert Dorsen, Donald Pearlman and Jerome Quint, whose qualifications are not questioned by the People, perform the abortions. These doctors, on June 30, 1971, formed a partnership to conduct their practice at the offices rented to them at the 88 Ashford Avenue address. In the partnership agreement, it was agreed that "pregnancies of not more than 12 weeks shall be terminated by each of them at the office". In June, 1971, Doctors Pearlman and Quint announced the opening of "their office for the practice of general, thoracic and vascular surgery" at the same 88 Ashford Avenue address. The exact size of the administrative, paramedical and nursing staff at the 88 Ashford Avenue office is not stated in the papers, nor do they contain any description of the physical layout or type and extent of medical equipment on the premises. Although a Dr. DeMartino of the State Health Department visited the office in October, 1971 and spoke with two of the physicians in the partnership, an affidavit of Dr. DeMartino was not submitted to the Court. A special investigator of the Attorney General's office did visit the office in January, 1972 but only observed the reception area in which 15 young women were waiting and the sign on the office door stating "Dobbs Ferry Medical Pavillion". The investigator made certain inquiries of "two women wearing lab coats" as to cost and method of the operation and then departed.
Defendant, Jerry Zucker, is alleged to be the administrator of the Dobbs Ferry Medical Pavillion clinic, but Mr. Zucker denies this, claiming only that he is "employed by the doctors to assist in managing the office on a part-time basis" but has no contact with patients seeking an abortion or other medical treatment. Furthermore, Mr. Zucker states that "Dobbs Ferry Medical Pavillion" merely rents office space to the partnership under a lease made in June, 1971.
The administrative procedures and guidelines in regard to applications for approval of an abortion clinic, including the applicable State Hospital Code provisions, 10 N.Y.C.R.R., § 700.1 et seq., were detailed in an affidavit submitted by Dr. William R. Donovan, the Regional Director of the Department of Health. The public health council reviews such applications according to the standards established for an "independent out-of-hospital health facility", State Hospital Code, 10 N.Y.C.R.R., § 700.2, subd. a(6). Some applications for approval of abortion clinics have already been submitted to the council and have received licenses. However, although copies of application forms were delivered to the Dobbs Ferry Medical Pavillion Inc. by Dr. DeMartino, they have not been returned to the Department of Health.
The People contend that no "abortion clinic", such as the one allegedly being operated by defendants, can be established without the written approval of the public health council as required by Section 2801-a, subd. 1. The fundamental issue is whether the facility operated by the defendant's is a "hospital" within the meaning of Section 2801, subd. 1, and, therefore, required to obtain the public health council's approval. The People insist that this action is a valid exercise of the State's right to regulate to protect the general welfare.
Before turning to the defendants' contentions, it should be appreciated that the resolution of the question before the Court in no way relates to or hinges upon a value judgment as to abortions per se. The Legislature in its wisdom has determined that issue and the judiciary has reviewed and upheld the law as enacted, Byrn v. New York City Health & Hospitals Corp. et al., 38 A.D.2d 316, 329 N.Y.S.2d 722. This clarification is necessitated as a result of a letter received from defendants after oral argument requesting that I disqualify myself from considering this matter because of a remark made during oral argument that although I was opposed to the present 24-week abortion law, I am duty bound to uphold the law and observe it. Because the issues here can be determined wholly apart from any consideration of abortion per se, I have declined to step down. As pointed out by Mr. Justice Gulotta in his opinion, dissenting in part, in Byrn, supra, p. 332, 329 N.Y.S.2d p. 737, "We all have our personal beliefs and a philosophy of life, but a Judge must apply the law as he finds it, whether it supports his beliefs or not". That is my oath and I will not shrink from it.
Defendants argue the constitutionality of Sections 2801 and 2801-a on two grounds; that the statutory definition of a "hospital" is impermissively vague and thus the statute is void under the due process clause of the Fourteenth Amendment of the United States Constitution and the Constitution of the State of New York, and, secondly, that the statute is unconstitutional as applied in that it is being employed in a discriminatory manner depriving defendants of fundamental personal and property rights in contravention of the Fourteenth and Ninth Amendments of the United States Constitution.
Even assuming the constitutionality of these provisions, defendants argue that the facility is not a hospital but rather only a "group" practice in which three eminent physicians maintain their office. The defendants also argue that the People have failed to demonstrate any real, substantial or irreparable harm to justify the drastic remedy of a preliminary injunction pending trial.
Section 2801, subd. 1, which defendants attack as unconstitutional, provides:
In addressing the question of constitutionality of a statute, a court must proceed with utmost care because a duly enacted statute carries with it a strong presumption of constitutionality, including a rebuttable presumption of the existence of necessary factual support for its provision. Question of wisdom, need or appropriateness are for the Legislature, and a court strikes down statutes the Legislature has enacted only as a last resort and only when unconstitutionality is shown beyond a reasonable doubt, Byrn v. New York City Health & Hospitals Corp. et al., 38 A.D.2d 316, 329 N.Y.S.2d 722, supra. Of no small import is the fact that the Public Health Law is a general statute relating to a matter of State concern, Fisher v. Kelly 289 N.Y. 161, 166, 44 N.E.2d 413, and that the State has broad power to establish and enforce standards of conduct within its borders relative to the health of everyone there, Barsky v. Board of Regents, 347 U.S. 442, 449, 74 S.Ct. 650, 98 L.Ed. 829.
However, a statute which forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to the application violates the first essential of due process of law, Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322; Trio Distributor Corp. v. City of Albany, 2 N.Y.2d 690, 696, 163 N.Y.S.2d 585, 143 N.E.2d 329. On the other hand, there is little doubt that imagination can conjure up hypothetical cases in which the meaning of certain terms will be a nice question. The applicable standard, however, is not one of wholly consistent academic definition of abstract terms. It is, rather, the practical criterion...
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People v. Shore Realty Corp.
...not establish a denial of equal protection, nor does a mere showing of laxity in the enforcement of a law. People v. Dobbs Ferry Medical Pavillion, 69 Misc.2d 886, 332 N.Y.S.2d 186. It is noted that the defendant itself, in its moving papers, has indicated that the violations which are alle......