Roberts v. Health & Hosp. Corp.

• Decision Date: 07 July 2011
• Docket Number: 4974 112247/10 112249/10 112294/10
• Parties: Lillian Roberts, etc., et al., Petitioners-Respondents, v. Health and Hospitals Corporation, et al., Respondents-Appellants. Honorable Daniel Dromm, etc., et al., Petitioner-Respondents, v. Health and Hospitals Corporation, Respondent-Appellant. Sean Fitzpatrick, etc., et al., Petitioners-Respondents, v. Health and Hospitals Corporation, et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 05882

Lillian Roberts, etc., et al., Petitioners-Respondents,
v.
Health and Hospitals Corporation, et al., Respondents-Appellants.
Honorable Daniel Dromm, etc., et al., Petitioner-Respondents,
v.
Health and Hospitals Corporation, Respondent-Appellant.
Sean Fitzpatrick, etc., et al., Petitioners-Respondents,
v.
Health and Hospitals Corporation, et al., Respondents-Appellants.

4974 112247/10 112249/10 112294/10

SUPREME COURT, APPELLATE DIVISION First Judicial Department

Decided on July 7, 2011

First Judicial Department Richard T. Andrias, J.P.

John W. Sweeny, Jr. James M. Catterson Dianne T. Renwick, JJ.

Respondents appeal from the orders and judgments (each one paper) of the Supreme Court, New York County (Alice Schlesinger, J.), entered December 13, 2010, which granted the petitions to annul the determination of respondent HHC to lay off carpenters, electricians, and laborers, respectively at their facilities.

Michael A. Cardozo, Corporation Counsel, New York

(Scott Shorr, Francis F. Caputo and Eamonn Foley of counsel), for appellants.

Mary J. O'Connell, New York (Steven E. Sykes and Aaron S. Amaral of counsel), for Lilian Roberts, Kyle

Simmons, Trevor Moonsammy and Victor Maduro, respondents.

Broach & Stulberg, LLP, New York (Robert B. Stulberg and Michael H. Isaac of counsel), for Daniel Dromm,

Karen E. Koslowitz, JulissaFerreras and Frank Spencer, respondents.

Greenberg Burzichelli Greenberg P.C., Lake Success (Robert J. Burzichelli, Linda N. Keller and Genevieve E. Peeples of counsel), for Sean Fitzpatrick, Rodney Downes,

William Larosa and Bill Lecomples, respondents.

SWEENY, J.

These consolidated appeals from three Article 78 proceedings once again raise the issue of the proper role of the judiciary in our coordinate branch system of government. Petitioners in each action seek to involve the courts in a decision-making process that lies squarely within the purview of the executive branch. While in appropriate circumstances, the courts may intervene to review such decisions, this power must be exercised sparingly (Jones v Beame, 45 NY2d 402, 406 [1978]). In these proceedings, for the reasons to be discussed, we decline to do so.

THE PARTIES

Respondent New York City Health and Hospitals Corporation (HHC) is a public benefit corporation formed by virtue of the provisions of McKinney's Unconsolidated Laws of NY § 7384 [HHC Act 84, as added by L1969, ch 1016.81 as amended]. The Legislature created HHC to address the need to provide "a system permitting legal, financial and managerial flexibility . . . for the provision and delivery of high quality, dignified and comprehensive care and treatment for the ill and infirm, particularly to those who can least afford such services" (McKinney's Unconsolidated Laws of NY § 7382 [HHC Act 827]).

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HHC provides medical and treatment services to approximately 1.3 million New Yorkers annually through the operation of its 11 acute care hospitals, 4 skilled nursing facilities, 6 large diagnostic and treatment centers and more than 80 community-based clinics. It is administered by a board of directors appointed by the Mayor and City Council. It has a chief executive officer selected by the board "from persons other than themselves" who serves at the pleasure of the board (McKinney's Unconsolidated Laws of NY § 7384[1] [HHC Act 84(1) as amended]).

Petitioners consist of elected officials, labor union representatives and union members. These petitions are brought to revisit certain layoff decisions made by HHC which will be discussed more fully herein.

In Dromm v HHC, petitioners are: (1) Daniel Dromm, Karen E. Koslowitz and Julissa Ferreras, three members of the New York City Council representing districts in Queens; and (2) Frank Spencer, the Supervisor of the New York City District Council of Carpenters (the Carpenter's Union) representing, inter alia, carpenters and supervisor carpenters employed by HHC.

In Fitzpatrick v HHC, petitioners are: (1) Sean Fitzpatrick, the business representative of Local Union No. 3, I.B.E.W. (the Electricians Union); (2) the Electricians Union in its own right, which represents HHC's supervisor electricians, electricians, and electrician's helpers; (3) Rodney Downes, an HHC electrician scheduled to be laid off; and (4) William LaRosa and Bill Lecomples, HHC electricians who were to retain their positions after the scheduled layoffs.

In Roberts v HHC, petitioners are: (1) Lillian Roberts, the Executive Director of District Council 37 (DC37), a confederation of 55 local labor unions; (2) Kyle Simmons, the President of Local 924, the DC37 affiliate representing HHC laborers; (3) Trevor Moonsammy, an HHC laborer scheduled to be laid off; and (4) Victor Maduro, an HHC laborer scheduled to be laid off from his present position and reassigned to his previous title of "Service Aide."

FACTS

The underlying facts are essentially not in dispute.

In early 2009, in response to city budget cuts and other financial issues affecting its operations, HHC undertook to restructure its organization with a goal of making it more cost efficient. As part of this effort, HHC formed a "Restructuring Steering Committee" consisting of executives and network leaders from within HHC. It also retained Deloitte Consulting (Deloitte) to conduct a study of HHC at every level and propose various options to be considered by the steering committee in deciding how best to restructure the corporation. Deloitte was given a twofold mission: provide the steering committee with options to save approximately $1 billion while preserving HHC's main function of providing "patient care to all, regardless of ability to pay" and building upon HHC's "patient safety culture."

Deloitte spent nine months, including 2,000 pro bono hours, examining HHC's operations at all levels. It presented 100 options to the steering committee in a massive 1,000 page report describing the risks, mission impact and expected financial results of each option presented. The recommendation which underlies these proceedings called for the creation of "shared services operations and contracting out the management and/or provision of ancillary

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services" such as those provided by carpenters, electricians, laborers and plumbers. Included in this recommendation was the elimination of certain titles and the layoff of some ancillary, i.e., nonmedical employees. It was estimated that this recommendation, if fully implemented, would save HHC approximately $141 million.

In April 2010, the steering committee discussed all of Deloitte's recommendations, rejected a number of the proposed options and decided which ones to implement. The steering committee determined that HHC could eliminate certain trades positions, including carpenters, electricians, and laborers, while safely maintaining its facilities. This decision was made after consultation with the facility managers affected. In May 2010, HHC released a report announcing the steering committee's final cost-reduction decisions. Rather than reduce services or shutter facilities, HHC ultimately decided, inter alia, to eliminate, effective September 17, 2010, 45 of 136 carpenter positions, 45 of 156 electrician positions and 54 of 104 laborer positions, among others. The number of employees subject to these layoffs was lower than those recommended by Deloitte.

On September 15 and 16, 2010, in response to the proposed layoffs, the three instant petitions were filed.

THE PETITIONS

The Dromm petitioners seek an order pursuant to CPLR 6301, 7803 and 7805, and Public Health Law (PHL) § 2801-c, preliminarily and permanently enjoining HHC from abolishing one-third of its carpentry staff. Petitioners argue that the decision to abolish these positions violates McKinney's Unconsolidated Laws of NY §§ 7382 and 7385(7) (HHC Act 75[7], as amended), which require HHC to operate, manage, superintend, control, repair, maintain and otherwise keep up its health facilities. They also claim violations of PHL §§ 2800 and 2803, as well as specified Department of Health Regulations promulgated thereunder at 10 NYCRR 405.24, 702.1, 702.2, 702.3, 711.2 and 711.4. These regulations require HHC to maintain its health facilities in a manner so as to assure a safe and suitable environment for patients. Petitioners argue that HHC's decision to reduce its maintenance staff will create an unsafe condition for patients and staff members who remain employed at the affected facilities. It is claimed that HHC's decision demonstrates a failure to perform a duty enjoined upon it by law - namely, the maintenance of its facilities in a safe condition - and thus brings the petition within the ambit of CPLR 7803(1) and (3).

The Fitzpatrick petitioners claim that HHC's scheduled layoffs would threaten the safety of electricians who retained their jobs. They seek declaratory and injunctive relief on substantially the same grounds as alleged in Dromm. Additionally, they claim that the scheduled layoffs would violate the Merit and Fitness clause of the New York Constitution, article V, § 6, because HHC allegedly planned to hire private contractors to perform the work of laid-off HHC electricians. They also claim that HHC's layoff procedures violated its Personnel Rules and Regulations, Rule 7.6.3.

The Roberts petitioners assert claims and request relief that are substantially...