Preview
FILED: ALBANY COUNTY CLERK 01/09/2023 03:13 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
In the Matter of the Application of
BEST HELP HOMECARE, INC.; CAREAIDE
DIRECT INC.; CAREFIRST CDPAP, CORP; EASY
CHOICE AGENCY INC.; HARBOR CARE LLC; AFFIRMATION
HOME CHOICE LLC; SAFE HAVEN HOME CARE,
INC.; AND SILVER LINING HOMECARE Index No. 905064-22
AGENCY, INC.,
Petitioners,
For a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules
-against-
NEW YORK STATE DEPARTMENT OF HEALTH,
and MARY T. BASSETT, MD, MPH, in her official
capacity as Commissioner of Health of the State of
New York,
Respondents.
Stacey Hamilton, an attorney admitted to practice in the State of New York, affirms the
following under penalty of perjury pursuant to CPLR 2106.
1. I am an Assistant Attorney General of counsel in this matter to Letitia James,
Attorney General of the State of New York, attorney for Respondents, Mary T. Bassett and NYS
Department of Health.
2. The matters contained in this affirmation are true to my knowledge, except as to
those matters alleged on information and belief, and as to those matters, I believe them to be true.
I make this affirmation in response to Petitioner’s e-filed Notice of Motion requesting that the
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Court “enjoin Respondents from announcing contract awards and non-awards until this
proceeding is resolved and Respondents have provided Petitioners with the documents to which
they are entitled under FOIL.” Dkt. 29.
3. In addition to the Notice of Motion referenced above, on December 28, 2022,
Petitioners e-filed an untitled three-page document bearing “Petitioners’ Motion for Temporary
Restraining Order and Preliminary Injunction Oral Argument Requested” (Dkt. 30), a 25 page
memorandum of law (Dkt. 30), an Affidavit by an individual named Yvonne Ward (Dkt. 31),
and an Affidavit by an individual named Rouandy Pascal (Dkt. 32). Petitioner did not file a
Petition with the Notice of Motion.
4. Pursuant to C.P.L.R. 6311(1) a preliminary injunction may be granted only upon
notice to the defendant. Notice of motion for a preliminary injunction to restrain state officers
must be upon notice served upon the defendant or respondent state officers, and must be served
upon the attorney general by delivery of such notice to an assistant attorney general at an office
of the attorney general in the county in which venue of the action is designated, or if there is no
office of the attorney general in such county, at the office of the attorney general nearest such
county. C.P.L.R. 6311(2).
5. Petitioner did not file their application on notice to the respondents. Petitioner did
not serve respondents the notice of motion, or any of the other documentation referenced in
paragraph three above.
6. Pursuant to C.P.L.R. 6313(a), no temporary restraining order may be granted in
an action against a public officer, board or municipal corporation of the state to restrain the
performance of statutory duties.
7. The only question before the Court is whether Respondents were arbitrary and
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capricious in their response to Petitioner’s FOIL request. Dkt. 1. The majority of Petitioner’s
papers filed in support of its notice of motion contain arguments that are not relevant to the issue
at hand. Petitioner continuously cites to New York State Finance Law in its initial Petition (Dkt.
1), and in its memorandum of law (Dkt. 30). However, the New York State Finance Law has no
relevance whatsoever to this proceeding. Petitioner continuously claims and asserts arguments
that DOH’s evaluation process was arbitrary and unfair (Dkt. 30). However, Respondents’
evaluation process has no relevance whatsoever to this proceeding. Petitioner continuously
claims and asserts arguments that DOH’s process was flawed and their scoring arbitrary. (Dkt.
30) However, Respondents’ process and scoring have no relevance whatsoever to this
proceeding. Petitioner continuously claims and asserts arguments that they were deprived of due
process. (Dkt. 30) However, Petitioner’s due process, or alleged lack thereof, has no relevance
whatsoever to this proceeding.
8. Petitioners filed their initial Petition July 5, 2022. Dkt. 1. In said Petition,
Petitioners sought a stay of “Respondents’ finalization and the OSC’s approval of the RFO
contracts pending the resolution of this proceeding.” Dkt. 1, pg. 19. Petitioners’ prayer for relief
sought an Order “staying the implementation of contract award under the RFO pending
resolution of this proceeding.” Dkt. 1, pg. 20. Respondents opposed the Petition, including
Petitioners’ request for a stay. Dkt. 15, pgs. 12 – 14, Dkt. 20. Petitioners submitted a reply
memorandum of law in further support of their Petition in which they again asserted their
entitlement to a stay. Dkt. 24. The matter was fully briefed on August 31, 2022.
9. On November 21, 2022, Petitioners submitted a letter to the court to notify it that
a decision had been rendered in a companion case filed in Albany County Supreme Court. Dkt.
25. In said letter, Petitioners again asserted arguments in favor of their request for a stay. Dkt.
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25, pgs. 3 – 4. Respondents submitted a reply to said letter wherein they pointed out that
C.P.L.R. Article 78 provided no authority for Petitioners to submit supplemental argument to
their request for a stay. Dkt. 26, pg. 2.
10. Petitioners request for a stay has been fully submitted to this Court. There is no
authority upon which Petitioners can rely to file yet another memorandum of law in support of
their request for a stay, let alone another reply memorandum of law.
11. C.P.L.R. § 7805 permits the court in itsdiscretion to enforce a stay or a related
determination under review to maintain the status quo in a special proceeding. Town of East
Hampton v. Jorling, 181 A.D.2d 781 (2nd Dept. 1992). The criteria for a determination under
C.P.L.R. 7805 relies on the same factors as a preliminary injunction in a plenary action. Melvin
v. Union College, 195 A.D.2d 447 (2nd Dept. 1993).
12. A party moving for a preliminary injunction must demonstrate by clear and
convincing evidence, a likelihood of ultimate success on the merits, irreparable injury if the
injunction were not granted, and a balancing of equities in favor of the moving party. Family-
Friendly Media, Inc. v. Recorder Television Network, 74 A.D.3d 738 (2nd Dept. 2010). An
injunction is a provisional remedy to maintain the status quo until a full hearing can be held on
the merits, not to determine the ultimate rights of the parties. As such, the decision whether to
grant or deny a preliminary injunction is within the sound discretion of the court. Id.; Masjid
Usman, Inc. v. Beech 140, LLC, 68 AD3d 942 (2nd Dept. 2009).
13. In the letter that Petitioners submitted to the court in November 2022, they
acknowledged that Supreme Court Justice Gerald Connolly rendered a decision in the matter of
New York Advocates for Home Care, et al. v. New York State Department of Health and Mary T.
Bassett, Index No. 910456-21 (Dkt. 49) that addressed the same issues Petitioners raised in their
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Petition. Dkt. 25. In that case, Judge Connolly ruled that the description of strengths and
weaknesses in the Technical Offer Evaluation Tools were not subject to disclosure under FOIL.
Index No. 910456-21, Dkt. 49, pg. 17. Judge Connolly further ruled that the Respondents did
not waive their rights to assert FOIL exceptions based on any language used in the technical
evaluation instructions. Id., pg. 19.
14. The Petitioners in the New York Advocates case also sought a stay pending
determination of the FOIL matter. While Judge Connolly ruled that the request was academic
because he was rendering a decision, he noted that, “The standing of one who seeks access to
records under the Freedom of Information Law is as a member of the public and is neither
enhanced nor restricted because he is also a litigant or potential litigant.” Id., pg. 26 (internal
citations omitted). The Court noted that Petitioners did not seek a stay of the FOIL
determination under review and Respondents’ determinations with respect to the RFO were not
subject to review therein. Id.
15. Based on the persuasive authority cited above, Petitioners are unable to prove, by
clear and convincing evidence, a likelihood of success on the merits. In fact, Judge Connolly’s
ruling in the New York Advocates case proves that Petitioners are not likely to succeed on the
merits of their claims. Petitioners fail to offer any relevant caselaw pertaining to FOIL, which is
the subject matter of this proceeding, that provides authority for their position.
16. A showing of irreparable injury requires that there is no other remedy at law,
including monetary damages, that could adequately compensate the party seeking relief.
Zodkevitch v. Feibush, 49 A.D.3d 424 (1st Dept. 2008). See Morgenthau v. Eribaum, 59 N.Y.2d
143, 148 (1983) (court may exercise its discretion in not affording declaratory relief when other
remedies are available and adequate); Alizio v. Feldman, 82 A.D.3d 804, (2nd dept. 2011); BGW
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Development Corp. v. Mount Kisco Lodge No. 1552 of the Benevolent and Protective Order of
Elks of the United States of America, 247 A.D.2d 565 (2nd Dept. 1998) (cause of action for a
declaratory judgment is unnecessary and inappropriate when the plaintiff has an adequate,
alternative remedy in another form of action); Wells Fargo Bank v. GSRE II, Ltd., 92 A.D.3d 535
(1st Dept. 2012) (plaintiff may not seek declaratory relief when other remedies are available).
17. Petitioners repeatedly state, in all of their filings, that they intend to file protests to
the New York State Office of the Comptroller. Dkt. 1, 5, 15, 24, 25. Therefore, they have
alternative remedies and are not entitled to a stay or a preliminary injunction.
18. An injunction is a provisional remedy to maintain the status quo until a full
hearing can be held on the merits, not to determine the ultimate rights of the parties. As such, the
decision whether to grant or deny a preliminary injunction is within the sound discretion of the
court. Family-Friendly Media, Inc. v. Recorder Television Network, 74 A.D.3d 738 (2nd Dept.
2010). In the case at hand, the only question before the court is whether Respondents were
arbitrary and capricious in responding to Petitioners’ FOIL request. Petitioner has failed to
provide any evidence to the Court upon which it could rely to hold that Petitioners are entitled to
enjoin Respondents from implementing contract awards based on this FOIL matter. Moreover,
Petitioners have failed to establish clear and convincing evidence that they are likely to succeed
on the merits of their claim; and they have alternative remedies available to them.
WHEREFORE, Respondents Mary T. Bassett and NYS Department of Health
respectfully request that the Court deny Petitioners’ request for a stay and/or a preliminary
injunction and deny the relief requested in the petition, together with such other or further relief
as may be just.
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FILED: ALBANY COUNTY CLERK 01/09/2023 03:13 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/09/2023
Dated: Albany, New York
January 9, 2023
Stacey Hamilton
Stacey Hamilton
Assistant Attorney General
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Preview
FILED: ALBANY COUNTY CLERK 01/09/2023 03:13 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY In the Matter of the Application of BEST HELP HOMECARE, INC.; CAREAIDE DIRECT INC.; CAREFIRST CDPAP, CORP; EASY CHOICE AGENCY INC.; HARBOR CARE LLC; AFFIRMATION HOME CHOICE LLC; SAFE HAVEN HOME CARE, INC.; AND SILVER LINING HOMECARE Index No. 905064-22 AGENCY, INC., Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules -against- NEW YORK STATE DEPARTMENT OF HEALTH, and MARY T. BASSETT, MD, MPH, in her official capacity as Commissioner of Health of the State of New York, Respondents. Stacey Hamilton, an attorney admitted to practice in the State of New York, affirms the following under penalty of perjury pursuant to CPLR 2106. 1. I am an Assistant Attorney General of counsel in this matter to Letitia James, Attorney General of the State of New York, attorney for Respondents, Mary T. Bassett and NYS Department of Health. 2. The matters contained in this affirmation are true to my knowledge, except as to those matters alleged on information and belief, and as to those matters, I believe them to be true. I make this affirmation in response to Petitioner’s e-filed Notice of Motion requesting that the 1 of 7 FILED: ALBANY COUNTY CLERK 01/09/2023 03:13 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/09/2023 Court “enjoin Respondents from announcing contract awards and non-awards until this proceeding is resolved and Respondents have provided Petitioners with the documents to which they are entitled under FOIL.” Dkt. 29. 3. In addition to the Notice of Motion referenced above, on December 28, 2022, Petitioners e-filed an untitled three-page document bearing “Petitioners’ Motion for Temporary Restraining Order and Preliminary Injunction Oral Argument Requested” (Dkt. 30), a 25 page memorandum of law (Dkt. 30), an Affidavit by an individual named Yvonne Ward (Dkt. 31), and an Affidavit by an individual named Rouandy Pascal (Dkt. 32). Petitioner did not file a Petition with the Notice of Motion. 4. Pursuant to C.P.L.R. 6311(1) a preliminary injunction may be granted only upon notice to the defendant. Notice of motion for a preliminary injunction to restrain state officers must be upon notice served upon the defendant or respondent state officers, and must be served upon the attorney general by delivery of such notice to an assistant attorney general at an office of the attorney general in the county in which venue of the action is designated, or if there is no office of the attorney general in such county, at the office of the attorney general nearest such county. C.P.L.R. 6311(2). 5. Petitioner did not file their application on notice to the respondents. Petitioner did not serve respondents the notice of motion, or any of the other documentation referenced in paragraph three above. 6. Pursuant to C.P.L.R. 6313(a), no temporary restraining order may be granted in an action against a public officer, board or municipal corporation of the state to restrain the performance of statutory duties. 7. The only question before the Court is whether Respondents were arbitrary and 2 2 of 7 FILED: ALBANY COUNTY CLERK 01/09/2023 03:13 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/09/2023 capricious in their response to Petitioner’s FOIL request. Dkt. 1. The majority of Petitioner’s papers filed in support of its notice of motion contain arguments that are not relevant to the issue at hand. Petitioner continuously cites to New York State Finance Law in its initial Petition (Dkt. 1), and in its memorandum of law (Dkt. 30). However, the New York State Finance Law has no relevance whatsoever to this proceeding. Petitioner continuously claims and asserts arguments that DOH’s evaluation process was arbitrary and unfair (Dkt. 30). However, Respondents’ evaluation process has no relevance whatsoever to this proceeding. Petitioner continuously claims and asserts arguments that DOH’s process was flawed and their scoring arbitrary. (Dkt. 30) However, Respondents’ process and scoring have no relevance whatsoever to this proceeding. Petitioner continuously claims and asserts arguments that they were deprived of due process. (Dkt. 30) However, Petitioner’s due process, or alleged lack thereof, has no relevance whatsoever to this proceeding. 8. Petitioners filed their initial Petition July 5, 2022. Dkt. 1. In said Petition, Petitioners sought a stay of “Respondents’ finalization and the OSC’s approval of the RFO contracts pending the resolution of this proceeding.” Dkt. 1, pg. 19. Petitioners’ prayer for relief sought an Order “staying the implementation of contract award under the RFO pending resolution of this proceeding.” Dkt. 1, pg. 20. Respondents opposed the Petition, including Petitioners’ request for a stay. Dkt. 15, pgs. 12 – 14, Dkt. 20. Petitioners submitted a reply memorandum of law in further support of their Petition in which they again asserted their entitlement to a stay. Dkt. 24. The matter was fully briefed on August 31, 2022. 9. On November 21, 2022, Petitioners submitted a letter to the court to notify it that a decision had been rendered in a companion case filed in Albany County Supreme Court. Dkt. 25. In said letter, Petitioners again asserted arguments in favor of their request for a stay. Dkt. 3 3 of 7 FILED: ALBANY COUNTY CLERK 01/09/2023 03:13 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/09/2023 25, pgs. 3 – 4. Respondents submitted a reply to said letter wherein they pointed out that C.P.L.R. Article 78 provided no authority for Petitioners to submit supplemental argument to their request for a stay. Dkt. 26, pg. 2. 10. Petitioners request for a stay has been fully submitted to this Court. There is no authority upon which Petitioners can rely to file yet another memorandum of law in support of their request for a stay, let alone another reply memorandum of law. 11. C.P.L.R. § 7805 permits the court in itsdiscretion to enforce a stay or a related determination under review to maintain the status quo in a special proceeding. Town of East Hampton v. Jorling, 181 A.D.2d 781 (2nd Dept. 1992). The criteria for a determination under C.P.L.R. 7805 relies on the same factors as a preliminary injunction in a plenary action. Melvin v. Union College, 195 A.D.2d 447 (2nd Dept. 1993). 12. A party moving for a preliminary injunction must demonstrate by clear and convincing evidence, a likelihood of ultimate success on the merits, irreparable injury if the injunction were not granted, and a balancing of equities in favor of the moving party. Family- Friendly Media, Inc. v. Recorder Television Network, 74 A.D.3d 738 (2nd Dept. 2010). An injunction is a provisional remedy to maintain the status quo until a full hearing can be held on the merits, not to determine the ultimate rights of the parties. As such, the decision whether to grant or deny a preliminary injunction is within the sound discretion of the court. Id.; Masjid Usman, Inc. v. Beech 140, LLC, 68 AD3d 942 (2nd Dept. 2009). 13. In the letter that Petitioners submitted to the court in November 2022, they acknowledged that Supreme Court Justice Gerald Connolly rendered a decision in the matter of New York Advocates for Home Care, et al. v. New York State Department of Health and Mary T. Bassett, Index No. 910456-21 (Dkt. 49) that addressed the same issues Petitioners raised in their 4 4 of 7 FILED: ALBANY COUNTY CLERK 01/09/2023 03:13 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/09/2023 Petition. Dkt. 25. In that case, Judge Connolly ruled that the description of strengths and weaknesses in the Technical Offer Evaluation Tools were not subject to disclosure under FOIL. Index No. 910456-21, Dkt. 49, pg. 17. Judge Connolly further ruled that the Respondents did not waive their rights to assert FOIL exceptions based on any language used in the technical evaluation instructions. Id., pg. 19. 14. The Petitioners in the New York Advocates case also sought a stay pending determination of the FOIL matter. While Judge Connolly ruled that the request was academic because he was rendering a decision, he noted that, “The standing of one who seeks access to records under the Freedom of Information Law is as a member of the public and is neither enhanced nor restricted because he is also a litigant or potential litigant.” Id., pg. 26 (internal citations omitted). The Court noted that Petitioners did not seek a stay of the FOIL determination under review and Respondents’ determinations with respect to the RFO were not subject to review therein. Id. 15. Based on the persuasive authority cited above, Petitioners are unable to prove, by clear and convincing evidence, a likelihood of success on the merits. In fact, Judge Connolly’s ruling in the New York Advocates case proves that Petitioners are not likely to succeed on the merits of their claims. Petitioners fail to offer any relevant caselaw pertaining to FOIL, which is the subject matter of this proceeding, that provides authority for their position. 16. A showing of irreparable injury requires that there is no other remedy at law, including monetary damages, that could adequately compensate the party seeking relief. Zodkevitch v. Feibush, 49 A.D.3d 424 (1st Dept. 2008). See Morgenthau v. Eribaum, 59 N.Y.2d 143, 148 (1983) (court may exercise its discretion in not affording declaratory relief when other remedies are available and adequate); Alizio v. Feldman, 82 A.D.3d 804, (2nd dept. 2011); BGW 5 5 of 7 FILED: ALBANY COUNTY CLERK 01/09/2023 03:13 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/09/2023 Development Corp. v. Mount Kisco Lodge No. 1552 of the Benevolent and Protective Order of Elks of the United States of America, 247 A.D.2d 565 (2nd Dept. 1998) (cause of action for a declaratory judgment is unnecessary and inappropriate when the plaintiff has an adequate, alternative remedy in another form of action); Wells Fargo Bank v. GSRE II, Ltd., 92 A.D.3d 535 (1st Dept. 2012) (plaintiff may not seek declaratory relief when other remedies are available). 17. Petitioners repeatedly state, in all of their filings, that they intend to file protests to the New York State Office of the Comptroller. Dkt. 1, 5, 15, 24, 25. Therefore, they have alternative remedies and are not entitled to a stay or a preliminary injunction. 18. An injunction is a provisional remedy to maintain the status quo until a full hearing can be held on the merits, not to determine the ultimate rights of the parties. As such, the decision whether to grant or deny a preliminary injunction is within the sound discretion of the court. Family-Friendly Media, Inc. v. Recorder Television Network, 74 A.D.3d 738 (2nd Dept. 2010). In the case at hand, the only question before the court is whether Respondents were arbitrary and capricious in responding to Petitioners’ FOIL request. Petitioner has failed to provide any evidence to the Court upon which it could rely to hold that Petitioners are entitled to enjoin Respondents from implementing contract awards based on this FOIL matter. Moreover, Petitioners have failed to establish clear and convincing evidence that they are likely to succeed on the merits of their claim; and they have alternative remedies available to them. WHEREFORE, Respondents Mary T. Bassett and NYS Department of Health respectfully request that the Court deny Petitioners’ request for a stay and/or a preliminary injunction and deny the relief requested in the petition, together with such other or further relief as may be just. 6 6 of 7 FILED: ALBANY COUNTY CLERK 01/09/2023 03:13 PM INDEX NO. 905064-22 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/09/2023 Dated: Albany, New York January 9, 2023 Stacey Hamilton Stacey Hamilton Assistant Attorney General Printed [Reproduced] on Recycled Paper 7 7 of 7