RoemerWallens
Gold &Mineauxuy
Counsellors at Law
December 24, 2012
Hon. Andrew W. Klein
Clerk of the Court
New York State Court of Appeals
20 Eagle Street
Albany, New York 12207
RE: City of Utica v. Richard F. Dairies, M.D.
Index No. 7747-10; Appellate Civil Case No. 512517
Dear Mr. Klein:
As you know, we represent Respondent City of Utica in this matter and file this letter brief in
response to that filed by Appellant Kunkel Ambulance Service. Kunkel seeks vacatur of the
Memorandum and Order entered by the Appellate Division, Third Department on May 10, 2012
in this matter. Based on the following, Kunkel's request should be denied.
Kunkel seeks vacatur of the Appellate Division's decision yet has only addressed one half of the
relevant inquiry. Kunkel states that an amendment has been made to the NYS Public Health
Law, rendering the underlying petition in this matter moot. However, mootness alone is an
insufficient basis for the vacatur and dismissal of the underlying decision and petition. As
discussed further below, in addition to a showing of mootness, there must also be a showing that
adverse legal consequences would result in the absence of vacatur.
Kunkel presents evidence only on the issue of mootness. It does not show that there will be any
adverse legal consequences if the decision below is not vacated. As a result, Kunkel's motion
seeking vacatur should be denied, and the pending appeal should be dismissed as moot.
There is no question here that Kunkel's appeal is moot. The Legislature has specifically
amended the Public Health Law to allow the City of Utica to prove public need by simply
submitting its application to the Commissioner of the State Department of Health for automatic
approval, provided that the City has met the requisite standards. The City of Utica has complied
with the new law and has already received its Ambulance Service Certificate, signed by
Commissioner Dr. Nirav R. Shah, from the Department of Health. (Attached hereto as Exhibit
"A"). As such, there is no longer a need to determine whether or not REMSCO or SEMSCO
acted arbitrarily or capriciously in denying the City's application for a certificate of public need.
13 Columbia Circle Ph. 518.464.1300(ext. 312) jkelly@rwgmlaw.com
Albany, New York 12203 Fx. 518.464.1010
Hon. Andrew W. Klein
December 24, 2012
Page 2 of 4
Kunkel now seeks an order vacating the Memorandum and Order of the Appellate Division
rendered in this proceeding, and an order remitting the matter to the Albany Count Supreme
Court, and an order directing the Supreme Court to dismiss Petitioner's Notice of Verified
Petition and Verified Petition. Kunkel does not set forth any rationale for why it would be
entitled to this highly unusual relief.
A moving party seeking vacatur of an underlying decision must prove that the appeal is moot,
but it must also show what adverse legal consequences would occur from not dismissing the
matter altogether. See, e.g. NRG Energy, Inc. v. Crotty, 18 A.D.3d 916 (3d Dept. 2005)
(declining to vacate the lower court's decision because of the respondent's failure to make "a
persuasive showing" that the decision could "engender adverse legal consequences"); Sarbro IX
v. McGowan, 271 A.D.2d 829 (3d Dept. 2000) (refusing to vacate the underlying decision
because the respondent had made no showing that the judgment would "engender adverse legal
consequences or precedent").
The Third Department's reasoning in the matter of Sarbro IX v. McGowan, 271 A.D.2d 829 (3d
Dept. 2000) is instructive in this regard. In that case, the petitioner was working on a Public
Works project, and the State withheld the balance of a payment owed to the petitioner. The
petitioner commenced a proceeding to recover payment, and, after the trial court had issued a
decision and while the appeal was pending, the State paid the balance due. Both parties agreed
that the payment rendered the matter moot, but the petitioner sought dismissal of the appeal,
while the State sought to vacate the underlying judgment. The Appellate Division agreed with
the petitioner, finding that the State had not made any showing that the trial court's judgment
would engender adverse legal consequences or precedent. As a result, the court refused "to
deviate from the general policy of simply dismissing the appeal in cases that have been rendered
moot." Id. at 830.
Similarly, in NRG Energy v. Crotty, 18 A.D.3d 916 (3d Dept. 2005), the Appellate Division
again addressed a case where State action had rendered a pending matter moot. The petitioners
had challenged new regulations promulgated by DEC, and the trial court had invalidated the
original regulations. During the pendency of the matter, DEC issued final regulations, rendering
the appeal of the trial court's order moot. DEC then sought to have the trial court's order
invalidating the original regulations vacated. The Appellate Division declined to do so,
specifically citing DEC's failure to show that any adverse legal consequences would result from
refusing to vacate the order. M. at 920.
The same result should be reached here. Kunkel fails to say why the Court should deviate from
the general policy of simply dismissing an appeal for mootness. It presents no argument or
evidence regarding any alleged adverse legal consequences that would result from failing to
vacate the order, likely because the decision in this matter focused on a factual dispute about the
weight of the evidence.
The Appellate Division's decision addressed the issue of whether the decisions by REMSCO and
SEMSCO were arbitrary and capricious. In order to render a decision on the matter, both the
majority and minority focused on the strength of the evidence presented by the City of Utica
Roemr Wallens Gold & Mineaux LLP 5 ___--- 7
Matth w Wkelly
Hon. Andrew W. Klein
December 24, 2012
Page 3 of 4
regarding public need and whether that evidence was properly considered in light of the statutory
presumption to which the City was entitled.
The majority held that REMSCO and SEMSCO failed to give the City of Utica the benefit of the
statutory presumption set forth in Section 3008 of the Public Health Law and that, because of
that failure, the City's evidence regarding public need was not properly considered. As a result,
it voted to reverse the trial court's holding. The dissent disagreed, finding that the City had met
its burden on the issue of public need by showing improved continuity of care. This, combined
with the statutory presumption, was enough to shift the burden to Kunkel to show that there was
no public need for the City's ambulance service. The dissent then found that Kunkel had
sufficiently rebutted the presumption by proving that it could cover all calls and refuting
evidence regarding the City's continuity of care.
The dispute between the majority and minority opinions related to a difference of opinion as to
the relative weight of evidence provided by the parties and whether REMSCO and SEMSCO
adequately considered the statutory presumption. This is not the type of dispute — one that
focuses on different interpretations of factual evidence — that lends itself to vacatur of the
underlying opinion once the underlying decision is rendered moot because allowing the decision
to stand does not engender any adverse legal consequences. In that regard, it is important to note
that the Attorney General, the chief legal officer of the state, has withdrawn its appeal, reflecting
its apparent position that there are no adverse legal consequences to allowing the Appellant
Division opinion to stand (Attached hereto as Exhibit "B").
All parties agree that this dispute has been rendered moot by the recent statutory amendment.
Only Kunkel seeks vacatur. However, Kunkel fails to advance any argument that this factual
dispute will lead to any adverse legal consequences if the current appeal is simply dismissed as
moot. As a result, Kunkel fails to meet its burden on the issue, and its motion seeking vacatur
should be denied.
If you have any questions, please do not hesitate to contact me at (518) 464-1300 x312. Thank
you for your attention to this matter.
Respectfully yours
MJK/slb
Hon. Andrew W, Klein
December 24, 2012
Page 4 of 4
Cc: Partick J. Fitzgerald, Esq.
Girvin & Firlazzo, P.C.
20 Corporate Woods Blvd.
Albany, New York 12211-2396
Frank A. Brady III, Esq.
Assistant Solicitor General
NYS Office of the Attorney General
The Capitol
Albany, New York 12224-0341