AZZO PC 9
ATTORNEYS AT LAW
20 Corporate Woods Blvd.
Albany, New York 12211
tel: 518 462 0300
tax: 518 462 5037
December 10, 2012
Patrick J. Fitzgerald, Esq.
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. Dailies, et al.
Albany County Index No.; 7747-10
Appellate Division Case No.: 512517
Dear Mr. Klein:
As you know, our office represents Appellant/Intervenor-Respondent Utica Ambulance
Service, Inc. d/b/a Kunkel Ambulance Service ("Kunkel Ambulance") in the above-referenced
matter. Pursuant to your letter dated November 30, 2012, I am writing pursuant to Rule 500.11 of
the Court's Rules of Practice, to set forth Kunkel Ambulance's comments and arguments in support
of its position on the merits in the above matter.
For the reasons set forth more fully below, Kunkel Ambulance respectfully requests that this
Court Order that the Memorandum and Order of the Appellate Division, Third Department rendered
in this proceeding and entered on May 10, 2012, be vacated, and that this Court further Order that
the proceeding be remitted to the Supreme Court, Albany County (McGrath, J.S.C.), and that the
Supreme Court be directed to dismiss Appellee/Petitioner City of Utica's ("City of Utica") Notice
of Verified Petition and Verified Petition in this action. This Court should afford the foregoing relief
based on an amendment to New York Public Health Law § 3008(7)(b) [2012 Sess. Laws of N.Y. Ch.
464] which became effective on October 3, 2012, and which has rendered the appeal in this matter
moot. A copy of the amended law is attached hereto as Exhibit "A".
It is well settled that where an appeal has been rendered moot by legislation that is enacted
while an appeal is pending but before the matter is decided by the Court of Appeals, the Court of
Appeals has discretion to vacate or reverse the underlying decision of the Appellate Division and to
remand the matter to the Supreme Court with directions to dismiss the matter. Ruskin v. Scrfir, 257
A.D.2d 268, 271 (1st Dep't 1999); see also 903 Park Avenue Corp. v. City Rent Agency, 31 N. Y.2d
330, 333 (1972); Wilmerding v, O'Dwyer, 297 N.Y. 664 (1947) (reversing appellate division order
and remitting case to Special Term for dismissal of complaint on the ground that the issues are
For instance, in 903 Park Avenue Corp., while an appeal to the Court of Appeals was
pending, a local law was adopted which rendered the appeal moot. 903 Park Avenue Covp., 31
N.Y.2d at 333. As a result of the enactment of the local law, this Court reversed the order of the
Appellate Division and remitted the case back to the Supreme Court with directions to dismiss the
complaint "upon the ground that the issue presented is moot." Id. at 333-334. The purpose of this
disposition is "to erase the whole case from the books" since its resolution has not been finally
adjudicated by the courts at the time it was rendered moot. Matter of Park E. Corp. v. Whalen, 43
N.Y.2d 735 (1977) (internal citations omitted) (quoting COHEN AND KARGER, POWERS OF THE NEW
YORK COURT OP APPEALS, p. 420).
The Present Appeal is Moot
Article 30 of the New York Public Health Law (N Y Pub. Health § 3000, et seq.) was enacted
to provide a statutory scheme to provide for the certification and regulation of ambulance services
in New York through the creation of various regional emergency medical services councils
(collectively, the "REMSCOs") and a single state emergency medical services council (the
"SEMSCO"). N. Y Pub. Health § 3000 (McKinney 2012). Any entity that wishes to operate an
ambulance service in New York State must follow the procedures and satisfy the requirements set
forth in Article 30 of the Public Health Law. Upon the filing of an application to operate an
ambulance service, the appropriate REMSCO conducts a public hearing to make a determination as
to whether there is sufficient public need to warrant the establishment of an additional ambulance
service. See NY Pub. Health Law § 3005(6). Following the determination by the REMSCO, the
applicant or any "concerned party" may appeal the determination to the SEMSCO N. Y Pub. Health
Law § 3008(5). A determination by the SEMSCO is subject to review pursuant to Article 78 of the
CPLR. N.Y Pub. Health Law § 3002(3) (McKinney 2012).
Public Health Law § 3008(7)(a) provides a limited exception to the provisions set forth
above for a municipality that wishes to establish a municipal ambulance service. A municipal
ambulance service is allowed to operate for a defined period of two years without submitting to the
process before the REMSCO. N. Y Pub. Health Law § 3008(7)(a). Prior to the recent amendment
of Public Health Law § 3008(7)(b), all municipal ambulance services were required to submit an
application for a determination of public need to the appropriate REMSCO at the expiration of the
initial two-year period, but were afforded a presumption in favor of the application.
In the present case, the City of Utica enacted a resolution to establish a municipal ambulance
service to operate within the geographic limits of the City in 2005. The Department of Health's
approval of this resolution authorized the City of Utica to operate a municipal ambulance service for
a limited two-year period in accordance with Public Health Law § 3008(7)(a). In May, 2007, the
City submitted an application for a determination of public need to the Midstate REMSCO to
continue operating its ambulance service. On Januar), 27, 2009, the Midstate REMSCO held a
public hearing with respect to the City's application for an operating certificate, and on February 10,
2009, voted to deny the application for a determination of public need. The City of Utica then
appealed the REMSCO' s determination to the SEMSCO. On October 6, 2010, the SEMSCO voted
to uphold the decision of the Midstate REMSCO and denied the appeal.
On November 16, 2010, the City of Utica commenced a proceeding pursuant to Article 78
of the CPLR to annul the determination of the SEMSCO. By Decision and Order dated June 13,
2011, the Supreme Court (McGrath, J.S.C.) dismissed the City of Utica's Verified Petition. By
Notice of Appeal dated June 29, 2011, the City appealed the Supreme Court's Decision and Order.
By Memorandum and Order decided and entered on May 10, 2012, the Third Department reversed
the Supreme Court's Decision and Order. In its Memorandum and Order, the Third Department
held, in relevant part, that the SEMSCO and REMSCO failed to afford the City the "strong
presumption" required under Public Health Law § 3008(7)(b). Justices Stein and Spain dissented
with the majority opinion. By Notice of Appeal dated June 7, 2012, Kunkel Ambulance appealed
the Appellate Division's Memorandum and Order to this Court.
On October 3, 2012, Public Health Law § 3008(7)(b) was amended to provide as follows:
In the case of an application for certification pursuant to this subdivision, for a
municipal advanced life support or municipal ambulance service, to serve the area
within the municipality, where the proposed service meets or exceeds the appropriate
training, staffing and equipment standards, there shall be a strong presumption in
favor of approving the application. Notwithstanding any other provision of this
article, any city with a population offourteen thousand seven hundred or sixty-two
thousand hvo hundred thirty-five, according to the two thousand ten federal
decennial census, or fire district acting on behalf of any such city, that applies for
permanent certification pursuant to this section at the conclusion of the two year
period provided in this subdivision, shall not be required to apply to its regional
emergency medical services council or the state emergency medical services council
for a determination ofneed, and the application shall be submitted to and approved
by the commissioner unless the commissioner ,finds that the municipal advanced life
support responder service or municipal ambulance service hasfailed to meet the
appropriate training, staffing and equipment standards. N.Y Pub. Health Law §
3008(7)(b) (amendment in italics).
The amendment to Public Health Law § 3008(7)(b) was enacted on behalf of the City of
Utica and the City of Glens Falls. Specifically, this legislation was enacted to grant these
municipalities permanent operating certificates without the requirement of establishing public need
pursuant to Public Health Law § 3008(7)(b).
The Appellate Division's Memorandum and Order
Should be Vacated and/or Reversed
The appeal presently before this Court has been rendered moot by the amendment of Public
Health Law § 3008(7)(b). Based on this amendment, the City of Utica was automatically granted
a permanent certificate to operate its municipal ambulance service and a review of the procedure set
forth in Article 30 — which is the subject of the present appeal — became unnecessary. Indeed, the
City of Utica was no longer required to make a showing of public need to operate an ambulance
service and the issue of whether a strong presumption was properly and lawfully applied became
Based on the foregoing, Kunkel Ambulance respectfully requests that this Court exercise its
discretion and issue an order vacating and/or reversing the Memorandum and Order of the Appellate
Division, Third Department, and further Ordering that this proceeding be remitted to the Supreme
Court, Albany County (McGrath, J.S.C.), and directing that the Supreme Court dismiss
Appellee/Petitioner's Notice of Verified Petition and Verified Petition as a matter of law on the
ground that the proceeding has been rendered moot. See, e.g., 903 Park Avenue Corp. v. City Rent
Agency, 31 N.Y.2d 330, 333 (1972).
Thank you for your attention to this matter.
GIRV1N & FERLAZ 0, P.C.
Patrick J. Fitzgerald
cc: Matthew J. Kelly, Esq.
Frank A. Brady III, Esq.
Seth Abrams, Esq.
Ronald G. Dunn, Esq.
Amelia K. Tuminaro, Esq.
Joseph M. Dougherty, Esq.