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The Front Page:

Wake on a snowy night:

Common Council votes 5-2 to settle hospital megabuck suit and refers Plan B to departments.

Presbyterian Hospital walks away a winner, exploiting sensitive advice of city attorney, threatening to sue for damages beyond city budget and insurance liability.

Delfino, Boykin, Oliva, Greer and Delgado are for. Malmud and King dissent.

Mayor points out that Malmud was Councilperson who demanded Edward Dunphy comment publicly on city's legal position on July 13, that weakened city's legal position.

Malmud publicly denies she was at July 13 meeting. City official minutes show she was there and made motion for adjournment.

13 residents, 3 reporters, 4 attorneys attend historic session.

Council assures public of careful review. Hospital attorney takes notes of council comments.

By John F. Bailey

CityLine: February 23, 2001, City Hall

The Common Council voted 5-2 Thursday evening in a hastily convened Special Session to agree to the New York Presbyterian Hospital terms of settlement of their Article 78 suit charging the Council attempted to force the hospital to give them land for a public park and for a denial of an "as-of-right" use for Council refusal to refer the Hospital Plan B last July.

The Mayor blamed Rita Malmud for having undermined the City legal position in the suit by forcing Corporation Counsel Edward P. Dunphy to comment on the city legal position in public last July 13, which he alleged weakened the city position.

In the settlement the hospital agrees to drop all claims in return for the Council agreeing to refer Plan B as submitted by the Hospital last July to city departments to start the review process that they had denied the hospital last July 17.

Only 13 citizens, plus 4 attorneys attended the meeting, held as 4 inches of snow was sifting down gently on City Hall which could have held down the turnout.

After comments had been heard and before the vote was taken, Mayor Joseph Delfino read a prepared statement, which officially were the last rites of Plan A:

"Make no mistake about it. The land that we have been debating here for over 15 years is private property. And the owners of the property - NY Hospital have said for 15 years that the property is not for sale. And the challenge for the City has always been how to find the best way to preserve as much open space as possible without violating the legal rights of the Hospital.

In my opinion, the best way to have done that would have been for the City to have allowed Plan A to be submitted to the various City agencies for consideration. This step, which is known as an official referral, would have opened the process to the public and would have allowed the City to continue to negotiate with the hospital. Because Plan A required a zoning change, it made even more sense for the City to refer Plan A for consideration because zoning changes are completely within the discretion of the Common Council and the Council has the ability to reject a zoning change for any reason, or no reason at all at any time during the referral process.

The Mayor corrected an a Journal News error appearing in the Thursday edition that reported the Mayor and Robert Greer had voted against referring Plan A. The Mayor reported correctly that he had voted to refer Plan A.

The Mayor's statement prior to calling the question bluntly said that Councilperson Rita Malmud's demand that Edward Dunphy, city Corporation Counsel, comment on the city's legal position in public on July 13, rather than go into executive session, was a mistake:

On July 13, I had scheduled an executive session for the Common Council to hear from the City's attorney about the legal implications of Plan B and how little discretion the Common Council had in dealing with Plan B. I explained that the reason for the executive session was to prevent the City from being at a disadvantage if a lawsuit was ever filed in this case...when I asked the Council to go into private session so that they could hear from their attorney, Mrs. Malmud refused, stating that the public had a right to know what the attorney's opinion was. And at the Council's request, the City's attorney explained in public that the City had very little legal discretion in regard to the referral of Plan B.

Then, the Mayor lowered the boom:

"So I find it laughable now that Mrs. Malmud is complaining that legal advice was revealed in public. The only reason the advice was revealed in public was because Mrs. Malmud demanded that it be revealed in public."

The Mayor continued to lace into Mrs. Malmud's public statements complaining about meeting with attorneys in "so called secret meetings."

"In fact," the Mayor said, "these past two executive sessions that Mrs. Malmud is complaining about, not only did she vote to go into executive session, she fully participated in those sessions."

The Mayor ended his statement saying that "throughout this (Plan B) process, I fully intend to continue to negotiate for parkland independent of Plan B as aggressively as I did under Plan A and hopefully we can come to some understanding."

Ms. Malmud opened to mouth to respond, and the Mayor had to override her three times to call the question.

The vote was taken and settlement and referral of Plan B was agreed to.

The meeting began with Kevin Plunkett, Common Council-appointed attorney, explaining the rationale behind the settlement. He informed the public and the council that the recommendation to settle "doesn't without thorough review of the merits. We weighed the risks against the reward from the litigation...(the settlement) is apparent to us is in the best interests of the city."

Plunkett noted " -- there's a process ahead for reviewing the special permit."

Mr. Plunkett was followed by several speakers from the small audience, who made their way to the podium slowly and spoke in reverent tones. The relatively brief public comments were striking for their lack of militancy, and poignant expressions of regret:

Barbara Benjamin, of Concerned Citizens for Open Space, was sympathetic to the Council's position, and also the most critical of all the speakers: "I must say I extend all of you my deepest sympathy. There's nothing quite like being between a rock and a hard place."

Benjamin said no developer has worked harder with neighborhoods than the hospital, but she said the hospital often worked to divide the city. She charged that New York Presbyterian Hospital "is not a hospital that gives one hoot about what the city wants. It wants what it wants." She repeated charges she has made in the past with an air of resignation, talking about pollution not cleaned up on the property and wetlands, though hospital spokesman Geoffrey Thompson has reported there is no present pollution on the property. Benjamin urged the city to zero in on the "polluted pond," and to pay close attention to the issues of traffic. She described the Plan B now in play as "obscene."

P. Lynn Oliva encouraged a stringent environmental review.

Alan Teck, President of Open Space, encouraged the council to initiate a plan forcing developers to put money in escrow which they would get back if they moved projects along, or would forfeit if projects dragged on too long. He suggested such a policy would be a good platform for candidates to adopt. He also expressed skepticism about the hospital ability to build the buildings about to be referred citing their losses in recent years.

Tim Sheehan, in somber tones, detailed what he described as the development of an attitude toward the hospital that stood in the way of the council making rational decisions. "You could have done this (accepted the 60 acres of free parkland), you spurned it, thinking 'we can do better.'"

"We have to end this mindset of hostility," Sheehan said, encouraging the council to "don't draw lines."

A woman believed to be Doris Simon said she was "horrified" to learn of the evening vote, citing fact that this was vacation time with many residents away the entire week. She asked: "Just how shady is this hospital anyway?"

Thomas Whyatt, attorney for Concerned Citizens for Open Space asked questions about the effects of the decision to refer and was assured by the mayor only referral was being made, that no other concessions had been made to the hospital, and that a through review would be made. "I just feel this way Mr. Whyatt," the Mayor said.

At this time the Common Council voiced their reasons for their votes.

Benjamin Boykin, Jr. said there were "no simple solutions. I don't feel I have changed my mind (about Plan B), But I have decided to vote for Plan B (referral). I look forward to full review."

Rita Malmud said "Last year on July 17...I made a vigorous effort to find common ground with New York Hospital and the wishes of this community and to avoid the exact lawsuit we now find ourselves embroiled in. The Councilmembers had seen the hospital's new Plan B only a short time earlier; our initial reaction...was one of dismay. I took New York Hospital up on their suggestion to pay heed to the dictates of the Zoning Ordinance, which encourages an initial informal review where there would be an easy opportunity to resolve differences. The hospital flat-out refused and then followed up with suing us."

She criticized the hospital contention that a printing error in the zoning ordinance changed the definition of what a hospital was.

She also said "Although I readily admit the legal reasons for meeting privately are correct, now that I have heard what New York Hospital had to say, I do not see the practical necessity for having met privately with New York Hospital. The info that I walked away with was either a repetition of prior pubic information or refinements of that which any one of reasonable intelligence could have figured out without any help from New York Hospital.

She expressed hope that in the future the Council would avoid "nonpublic" meetings: "There has been zero public opportunity to know what is going on and why. Until the night we are actually poised to vote, there has been zero opportunity for the public to know why any member of this council who had voted unanimously to reject Plan B on July 17 would tonight do a total about face. I find no adequate reason for such undue haste and secrecy.

Ms. Malmud said she would vote "no" for these reasons:" I cannot in good conscience agree to the terms of the proposed judicial stipulation that would accept the identical Plan B as a complete and bona fide proposal for referral at this time."

Pauline Oliva expressed doubt that the uses the hospital proposes for the property meet the definitions permitted in the special permit, saying she would follow advice of Mr. Plunkett, because she did not want the city or councilpersons sued, so she would vote to approve, making the vote 2-1.

Moving on, Robert Greer quickly cast the vote to settle at 3-1, saying the proposal will receive a "thorough environmental review." He also said he would push for an outside consultant to review the Environmental Impact Statement. Greer indicated that the review of all documents would be rigorous.

Larry Delgado cast the deciding vote, making it 4-1, saying that the advantage to settling was "that all claims go away. We eliminate the uncertainty of litigation. We will control our own destiny." Delgado expressed regret that Edward Dunphy had expressed a legal opinion in public that was "used against us."

"I would be negligent if I did not vote for this action. In good faith, we will give this a full review."

William King said "I don't think it was right the way this council was rushed into a settlement...we were not arbitrary and capricious in making our decision."

King said this was a "flip-flop" on the part of the council and said he still felt the city had a strong case for winning the suit, and cast his vote against the plan, making the final count, 5-2

The Mayor then made his preamble to calling the question reported previously, and the vote was taken.

After the vote, Ms. Malmud publicly denied she was at the July 13 public session where the Mayor had stated she had forced Mr. Dunphy to make the fatal statement of the city's legal position that the Mayor indicated by his comments was a blow to the city chance of winning the suit.

After a few schedulings of public hearings, the council broke for recess and at 7:27 PM, the wake was over.

The attorneys left. Residents consoled each other in echoes in vaulted rotunda of City Hall. One neighbor was in tears. The Councilman filed out to take a break before resuming in a work session.

After the Council meeting, the Mayor's office produced the minutes of the July 13 meeting where Mr. Dunphy was forced to make his faithful comment on the city chance of winning a lawsuit. The minutes state Ms. Malmud was present and that she made the motion to adjourn the meeting.

In the settlement reviewed by WPCNR yesterday, the settlement states that "the city was advised by its insurance carrier (Coregis Insurance Company), that the policy may cover only part of any loss and liability incurred."

Mr. Plunkett, and several councilpersons said they did not know the amount of liability the city was insured for. But this figure is available to the general public, though Budget Director Eileen Earl did not return WPCNR's call requesting the amount of insurance the city carries. We hope to obtain this figure tomorrow.

Privately sources have told WPCNR the hospital communicated to the city attorneys on Tuesday afternoon their intention to sue for damages that were more than the city budget of $77,000,000. George Gretsas, City Executive Officer, said the attorneys were also advised they would withdraw the settlement offer if the city did not settle within 48 hours, which ended at midnight Thursday.

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