Gold & MiIIeaUXLLP
Counsellors at Law
January 2, 2013
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. Dames, M.D.
Index No. 774 7-10; Appellate Civil Case No. 512517
Dear Mr. Klein:
As you know, we represent Respondent City of Utica in this matter and previously filed our brief
in this matter by letter dated December 24, 2012. Without seeking permission of the Court,
Appellant Kunkel Ambulance Service filed a reply brief dated December 28, 2012. This reply
brief violates the Court’s rules, and we object to the filing.
The procedure for the alternative appeal process here is governed by Rule §500.11. According
to Rule §500.11(e), “[a] reply is not permitted unless authorized by the Court upon request of the
appellant, which shall accompany the proposed filing, or on the Court’s own motion.” Kunkel
Ambulance did not seek permission of the Court when filing its reply brief. As a result, the reply
brief should be stricken.
In any event, Kunkel makes two claims of error in its effort to show the underlying decision here
will have legal consequences. Unfortunately, Kunkel misrepresents both. The Third
Department’s majority opinion did not rely on REMS CO’s conduct in making its determination,
as Kunkel claims. In fact, the opinion specifically states “[t]o be sure, our inquiry here is limited
to ascertaining whether the determination rendered by SEMSCO, which denied petitioner’s
application for certification of its municipal ambulance service, is arbitrary, capricious, or
otherwise affected by an error of law.” 95 A.D.3d 1467, 1470.
Moreover, the Third Department’s discussion regarding whether public need existed at the time
the City applied for its initial operating certificate was in reference to the underlying statute —
which specifically provides for a municipality to be granted an operating certificate for a two-
year period without a showing of public need. 95 A.D.3d at 147 1-72; NY Pub. Health Law
§3008(7)(a). There is no dispute regarding that provision of the statute, so there can be no
misunderstandings about the legal effects of the ruling.
3 Columbia Circle Ph. 518.464.1300(ext. 312) email@example.com
Albany, New York 12203 Fx. 518.464.1010
I Ion. Andrew W. Klein
January 2, 2013
Page 2 of 2
In addition to ignoring this Court’s procedural requirements, Kunkel has failed to articulate any
adverse legal consequences that might legitimately arise from the underlying decision. Given
Kunkel’s continuing refusal to accord the Courts’ rulings and procedures their proper deference,
Respondent respectfully requests that this Court strike Kunkel’s reply and deny its request for
If you have any questions, please do not hesitate to contact meat (518) 464-1300 x312. Thank
you for your attention to this matter.
Roemer Wallens Gold & Mineaux LLP
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
Albany, New York 12224-0341