On June 04, 2024 a
Exhibit,Appendix
was filed
involving a dispute between
In The Matter Of Bay Community Volunteer Ambulance Corps, Inc.,
and
New York State Emergency Medical Services Council,
The New York State Department Of Health,
for Special Proceedings - CPLR Article 78
in the District Court of Queens County.
Preview
FILED: QUEENS COUNTY CLERK 06/26/2024 04:01 PM INDEX NO. 711706/2024
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/26/2024
STATE OF NEW YORK
SUPREME COURT: QUEENS COUNTY
In the Matter of: AFFIRMATION IN SUPPORT
BAY COMMUNITY VOLUNTEER AMBULANCE CORPS, INC.
Petitioner,
-against-
THE NEW YORK STATE DEPARTMENT OF HEALTH, and
NEW YORK STATE EMERGENCY MEDICAL SERVICES COUNCIL
Respondents
______________________________________________
Bradley M. Pinsky, an attorney admitted to practice law in the state of New York, upon penalty of
perjury, affirms as follows:
1. I am submitting this additional Affirmation in support of the Petition, as I have recently
received from the state the “Amended Report and Recommendation” which is now
electronically filed as Exhibit E.
2. The Amended Report first reaches outside the original record in order to utilize statements
made in Petitioner’s first Petition (Index No. 707201/2023).
3. The ALJ then makes the following “recommendation”:
The July 29, 2022 report and recommendation of ALJ O’Brien to the SEMSCO should be
amended to reflect that there was a need at that time for additional EMS in Bayside. The
report and recommendation should further be amended, however, to also include the
findings that since the REMSCO Hearing Officer’s and ALJ O’Brien’s reports were made,
Glen Oaks has received SEMSCO approval for its expansion into Bayside on an application
made before Bay Community’s application. The Applicant herein has not met its burden
of proving that there continues to be a public need in Bayside. The SEMSCO should
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FILED: QUEENS COUNTY CLERK 06/26/2024 04:01 PM INDEX NO. 711706/2024
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/26/2024
review and consider that finding in making its determination whether to deny or grant the
application.
Exhibit E, pp 5-6 (emphasis added).
4. The ALJ’s recommendation to the SEMSCO violates Policy 06-06 that reviews are not de
novo, as the ALJ specifically suggests that the SEMSCO conduct a de novo review. For
this reason alone, the decision must be vacated.
5. Additionally, this statement is blatantly arbitrary and capricious. How can Petitioner
establish that today, there “continues to be a public need” when the record was closed years
ago?
6. The ALJ suggest that Petitioner failed to meet its burden of addressing whether an
ambulance service which was not providing services at the time (Glen Oaks) is today
fulfilling all of the needs of that territory. How is that even possible when the record was
closed years ago?
7. Petitioner has no opportunity after the close of the REMSCO hearing to present any new
evidence, which is why the SEMSCO determination cannot be de novo. The ALJ also
requests that the SEMSCO perform this determination, but there was no such evidence in
the record as Glen Oaks was not providing services at that time.
8. Once again, the ALJ and the SEMSCO have violated state policy 06-06 and have acted in
an arbitrary and capricious manner.
9. Determining whether need still exists also was an impossibility. Glen Oaks was not serving
the territory at the time. How can we now, today, possibly know whether Glen Oaks is
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FILED: QUEENS COUNTY CLERK 06/26/2024 04:01 PM INDEX NO. 711706/2024
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/26/2024
fulfilling 100% of the needs of the patients in the territory? There would not have been any
such facts in the record years ago about what happens today.
10. Even if Glen Oaks application could have been considered, which it should not have been,
the question of whether there remains need “today” is a de novo question which could not
be found in the record. All that was discussed during Petitioner’s application to the
REMSCO was whether there was need at the time of the application, not years later.
11. Since the ALJ concluded that “The July 29, 2022 report and recommendation of ALJ
O’Brien to the SEMSCO should be amended to reflect that there was a need at that time
for additional EMS in Bayside” (emphasis added), Petitioner respectfully requests that this
Court:
A. declare that the SEMSCO’s decision was in violation of legal process by violating
Department of Health Policy 06-06 by conducting a de novo review;
B. was arbitrary and capricious in requiring Petitioner to prove that need continued to
exist, but such requirement was imposed after the close of the record; and
C. vacating the SEMSCO’s denial of Petitioner’s appeal and application; and
D. awarding Petitioner an Ambulance Service Certificate for the territory requested by
Petitioner in its application.
Dated: June 26, 2024
PINSKY LAW GROUP, PLLC
F
By: ____________________________
..
Bradley M. Pinsky
Attorney for Petitioner
4311 East Genesee Street
Syracuse, New York 13214
(315) 428-8344
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Document Filed Date
June 26, 2024
Case Filing Date
June 04, 2024
Category
Special Proceedings - CPLR Article 78
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FILED: QUEENS COUNTY CLERK 06/26/2024 04:01 PM INDEX NO. 711706/2024 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/26/2024 STATE OF NEW YORK SUPREME COURT: QUEENS COUNTY In the Matter of: AFFIRMATION IN SUPPORT BAY COMMUNITY VOLUNTEER AMBULANCE CORPS, INC. Petitioner, -against- THE NEW YORK STATE DEPARTMENT OF HEALTH, and NEW YORK STATE EMERGENCY MEDICAL SERVICES COUNCIL Respondents ______________________________________________ Bradley M. Pinsky, an attorney admitted to practice law in the state of New York, upon penalty of perjury, affirms as follows: 1. I am submitting this additional Affirmation in support of the Petition, as I have recently received from the state the “Amended Report and Recommendation” which is now electronically filed as Exhibit E. 2. The Amended Report first reaches outside the original record in order to utilize statements made in Petitioner’s first Petition (Index No. 707201/2023). 3. The ALJ then makes the following “recommendation”: The July 29, 2022 report and recommendation of ALJ O’Brien to the SEMSCO should be amended to reflect that there was a need at that time for additional EMS in Bayside. The report and recommendation should further be amended, however, to also include the findings that since the REMSCO Hearing Officer’s and ALJ O’Brien’s reports were made, Glen Oaks has received SEMSCO approval for its expansion into Bayside on an application made before Bay Community’s application. The Applicant herein has not met its burden of proving that there continues to be a public need in Bayside. The SEMSCO should 1 1 of 3 FILED: QUEENS COUNTY CLERK 06/26/2024 04:01 PM INDEX NO. 711706/2024 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/26/2024 review and consider that finding in making its determination whether to deny or grant the application. Exhibit E, pp 5-6 (emphasis added). 4. The ALJ’s recommendation to the SEMSCO violates Policy 06-06 that reviews are not de novo, as the ALJ specifically suggests that the SEMSCO conduct a de novo review. For this reason alone, the decision must be vacated. 5. Additionally, this statement is blatantly arbitrary and capricious. How can Petitioner establish that today, there “continues to be a public need” when the record was closed years ago? 6. The ALJ suggest that Petitioner failed to meet its burden of addressing whether an ambulance service which was not providing services at the time (Glen Oaks) is today fulfilling all of the needs of that territory. How is that even possible when the record was closed years ago? 7. Petitioner has no opportunity after the close of the REMSCO hearing to present any new evidence, which is why the SEMSCO determination cannot be de novo. The ALJ also requests that the SEMSCO perform this determination, but there was no such evidence in the record as Glen Oaks was not providing services at that time. 8. Once again, the ALJ and the SEMSCO have violated state policy 06-06 and have acted in an arbitrary and capricious manner. 9. Determining whether need still exists also was an impossibility. Glen Oaks was not serving the territory at the time. How can we now, today, possibly know whether Glen Oaks is 2 2 of 3 FILED: QUEENS COUNTY CLERK 06/26/2024 04:01 PM INDEX NO. 711706/2024 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/26/2024 fulfilling 100% of the needs of the patients in the territory? There would not have been any such facts in the record years ago about what happens today. 10. Even if Glen Oaks application could have been considered, which it should not have been, the question of whether there remains need “today” is a de novo question which could not be found in the record. All that was discussed during Petitioner’s application to the REMSCO was whether there was need at the time of the application, not years later. 11. Since the ALJ concluded that “The July 29, 2022 report and recommendation of ALJ O’Brien to the SEMSCO should be amended to reflect that there was a need at that time for additional EMS in Bayside” (emphasis added), Petitioner respectfully requests that this Court: A. declare that the SEMSCO’s decision was in violation of legal process by violating Department of Health Policy 06-06 by conducting a de novo review; B. was arbitrary and capricious in requiring Petitioner to prove that need continued to exist, but such requirement was imposed after the close of the record; and C. vacating the SEMSCO’s denial of Petitioner’s appeal and application; and D. awarding Petitioner an Ambulance Service Certificate for the territory requested by Petitioner in its application. Dated: June 26, 2024 PINSKY LAW GROUP, PLLC F By: ____________________________ .. Bradley M. Pinsky Attorney for Petitioner 4311 East Genesee Street Syracuse, New York 13214 (315) 428-8344 3 3 of 3