Court of Appeals Building, Albany, NY. (Rick Kopstein)
The Court of Appeals will decide whether the state Department of Health examined hazardous materials and noise factors closely enough when it sanctioned construction of a 20-story nursing home next to a Manhattan elementary school.
As part of its review, the court also may weigh in on a related question that arose last year and generated controversy during an extended battle in the Appellate Division, First Department: Should a party to a lawsuit that fails to file a timely notice of appeal be allowed to voice its opinion in the case using a friend-of-the-court brief?
A First Department panel this week granted leave to appeal in two related lawsuits challenging the nursing home: Friends of P.S. 163 v. Jewish Home Lifecare, 100546/15, and Daisy Wright v. New York Department of Health, 100641/15. Justices David Friedman, John Sweeny, Troy Webber and Ellen Gesmer issued the unsigned order.
The central issue in both suits is whether the health department properly conducted a review of potential hazards under the State Environmental Quality Review Act (SEQRA) before it approved the nursing home’s construction next to Public School 163 and near local apartment buildings on the Upper West Side. Plaintiffs include a school group and local elderly residents.
In December 2015, Manhattan Supreme Court Justice Joan Lobis ruled the department had not looked hard enough at certain hazardous materials and noise factors, and she halted the project. The First Department reversed Lobis this past January, and plaintiffs in both suits moved for leave to appeal to the Court of Appeals, which was granted Tuesday.
But last year, in a running battle of interlocutory motions involving a separate First Department panel, certain parties battled over the filing of an amicus brief in the appeal on the SEQRA merits. The department missed a 2016 appeals filing deadline as a party to the lawsuit, but its co-defendant, Jewish Home Lifecare, the company behind the nursing home, appealed in time. Subsequently, the department filed a nearly 80-page amicus brief supporting Jewish Home Lifecare.
In turn, a 3-1 panel issued a lengthy opinion in October 2016 allowing the health department, as a party to the suit, to have its amicus brief considered. The panel reasoned that the state, as a party to a suit examining potential environmental hazards, did not have a “direct” partisan interest.
But in a blistering dissent that caught the attention of lawyers across the bar, Acting Presiding Justice Peter Tom said that First Department precedent has “explicitly ruled it inappropriate to permit a partisan amicus curiae, noting that that is a ‘contradiction in terms.’”
Tom added that allowing the state to file an amicus brief “would irreversibly open the door for any party … who has failed to appeal” to make an “end run” around its own mistake, and laced his dissent with words such as “absurd,” “disingenuous,” “perplexing” and “unenviable.”
The First Department later denied a motion to reargue the friend-of-the-court brief ruling (NYLJ, Jan. 7).
In briefing the motion for leave to appeal to the high court, Rene Kathawala, counsel for the school group, included a section on the state’s amicus brief. Kathawala, the pro bono director at Orrick, Herrington & Sutcliffe, argued it was a merits brief disguised as an amicus brief, and that it likely influenced the First Department’s decision to reverse Lobis.
The Court of Appeals may take up the amicus briefing issue, which lawyers such as Kathawala contend could have ramifications for years to come by opening the door to parties that miss a filing deadline.
Kathawala sees his appeal as more focused, though, on a particular SEQRA issue: What is the proper SEQRA standard for a review when the affected location is a “highly sensitive one” like an elementary school? “With respect to sensitive locations, environmental impacts may have to be mitigated even though they are less than two years,” he said.
Steve Russo, a New York partner at Greenberg Traurig representing Jewish Home Lifecare, declined to comment. The New York Attorney General’s Office, representing the health department, did not return a call seeking comment.