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April 24, 1996

SUFFOLK PARENTS of HANDICAPPED ADULTS; and IRENE HOOPS; FRANK GATLAND; FRANCES SENSALE LENZO; JOYCE B. ARON; LILLIAN MELVILLE HAMID; MARGARET DeVOE; JANE DOE, and RICHARD ROE, as parents and guardians of, respectively, LORA HOOPS; ANDREW GATLAND; JAMES SENSALE; LOURDES ARON; GLENNA HAMID; KAREN DeVOE; JOHN DOE, and RACHEL ROE, Plaintiffs, against GEORGE E. PATAKI, as Governor of the State of New York; ROBERT J. GAFFNEY, as County Executive of Suffolk County; THOMAS A. MAUL; JAMES L. STONE; BRIAN WING, and JOHN B. WINGATE, as Commissioners of, respectively, the New York State Office of Mental Retardation and Developmental Disabilities; the New York State Office of Mental Health; the New York State Department of Social Services, and the Commissioner of the Department of Social Services; and SUFFOLK COUNTY, Defendants.

The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 This action was brought by four profoundly disabled and medically fragile adults, who have been institutionalized under joint State-local programs for many years, most recently under a program called Transitional Care Funding (TCF). The TCF program was developed to provide a bridge between educational placements of severely disabled persons in residential programs and long-term adult residential care after these persons became adults or, as it is called, "aged-out" of educational placements at the end of the school year in which they became twenty-one. This suit results from an unfortunate dispute between the State of New York and Suffolk County concerning the funding of the TCF program. *fn1" The rights of plaintiffs under the federal Constitution have been gravely imperiled as the result of Suffolk County's precipitate termination of its funding of the TCF program in late November 1995, effective December 31, 1995. *fn2"

 Accordingly, on April 2, 1996, a preliminary injunction was issued, ordering "Suffolk County to resume funding these persons' institutional placements, including arrears to January 1, 1996, for a period of six months from the date of the order, so as to provide TCF [Transitional Care Funding -- the State-local program] recipients and the State the opportunity to arrange alternative care in an orderly manner." In addition, the State defendants *fn3" were ordered to use all good efforts, employing professional judgment, to assist plaintiffs in obtaining appropriate alternative care and to assume the burden of funding any TCF placements when Suffolk County's obligations under the order would expire at the end of the six month period.

 By letter dated April 8, 1996, Suffolk County, John Wingate, Commissioner of Social Services, and Robert Gaffney, County Executive (County defendants), have requested a stay of the injunction pending appeal. The County defendants also submitted a supersedeas bond in support of their request for the stay of the order to pay plaintiffs' existing arrears. Plaintiffs have submitted a letter in opposition to the County's request. The State defendants' representatives have declined to reply. The representative of the non-profit school, at which three of the four plaintiffs reside, has submitted an affidavit detailing its monthly costs and the total amount in arrears. The County, by letter dated April 12, 1996, has submitted a reply to plaintiffs' response and also an amended motion, adding the County Executive, Robert Gaffney, to the list of movants.

 By letter dated April 18, 1996, plaintiffs have requested that a "corrected opinion" be issued indicating that, should the County prevail on appeal, the State would bear full responsibility for plaintiffs' care. The State has submitted a reply, dated April 23, 1996, opposing this request.

 For the reasons stated below, the County's request is granted in part and denied in part, and the order is clarified to make explicit the court's view that, should the County prevail on appeal, the State is fully liable for plaintiffs' care from April 2, 1996, the date of the order.


 The controlling test for whether a stay should be granted places a heavy burden on the movant. The Second Circuit has stated it as follows:

A party seeking a stay of a lower court's order bears a difficult burden. We consider (1) whether the movant will suffer irreparable injury absent a stay; (2) whether a party will suffer substantial injury if the stay is granted; (3) whether the movant has established a substantial possibility, which need not be a likelihood, of appellate success; and (4) the public interest.

 United States v. Private Sanitation Industry Association of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir. 1994) citing Hirschfeld v. Board of Elections, 984 F.2d 35, 39 (2d Cir. 1992).

 The first through third components of this test closely correspond to the test that was applied in determining that plaintiffs were entitled to an injunction. See Suffolk Parents v. Pataki, F. Supp. , 1996 U.S. Dist. LEXIS 4703, 1996 WL 173024, *15 (E.D.N.Y. April 2, 1996). In addressing the stay, of course, the County's claim that it will suffer irreparable harm becomes a primary focus. In addition, the test for a stay requires consideration of the public interest. *fn4"

 1. Irreparable Harm to Movant Absent a Stay

 The County argues that it will suffer irreparable harm through its inability to recoup the funds should it prevail on appeal, thereby "depriving some other program of budgeted funds." The argument is not without some merit, for public funds are certainly not limitless, nor is it the role of the judiciary to determine how they should be distributed. However, the role of the judiciary to review executive and legislative actions and to protect the rights of persons unable to protect themselves from unconstitutional governmental intrusion has also long been recognized. It was recognized, in fact, in the very decisions upon which the finding was based that the County violated plaintiffs' constitutional right, Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982) and Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239 (2d Cir. 1984).

 In its letter, the County presents a distorted picture of the actual financial impact of the preliminary injunction on the current arrears for the four plaintiffs, which it asserts are $ 88,297.84. That figure represents the full cost of institutionalization, but the State will reimburse the County for sixty percent of that cost. Thus the actual, final cost to the County of the arrears will be $ 35,319.14. The ongoing cost, per month, for plaintiffs is $ 11,773 after reimbursement by the State. The total cost to Suffolk County for the care of the four plaintiffs for both arrears and a six month phase-out period combined, assuming that none of the plaintiffs is placed by the State in the interim, will be $ 105,957.

 Further, although it is not a factor in this decision, it is difficult to accept the assertion in the stay application that the County, because of its "line-by-line, item-by-item budget" is unable to absorb the approximately $ 106,000 that is the maximum cost to the County from this order after sixty percent reimbursement by the State. Acceptance of the County's assertion of inability to absorb the cost requires one to assume that the $ 1.6 billion Suffolk County 1996 budget *fn5" is predicted accurately to its last $ 100,000, that is, to less than one-hundredth of one percent of the total budget, and, even more significantly, requires one to assume also that the budget contains no allowance for contingencies.

 There is no dispute with regard to the following facts: first, budgeted and unexpended State Transitional Care Funding (TCF) *fn6" intended for Suffolk County residents are available that will reimburse Suffolk County for sixty percent of its phase-out costs. Second, the State's commitment, in the long term, to providing care for plaintiffs is also not in dispute. Finally, there is no real dispute about the necessity of institutionalization of plaintiffs, although, as is discussed, infra at 9, the County has, in its request for a stay, for the first time, sought to inject a question as to plaintiffs' need for care.

 The 1995-96 State budget already contains funds for sixty percent of the costs of the arrears for plaintiffs' institutional care. None of these funds, budgeted to pay for out-of-state placements, has been used for the benefit of plaintiffs from January 1 to the date of the order, a period of three months. Further, the State has represented that it will reimburse the County for TCF payments it makes. Tr. at 31, 44. From the efforts at placement on which counsel for the State Office of Mental Retardation and Developmental Disabilities (OMRDD) reported at the hearing, the State appears to be committed to offering and providing appropriate in-State placements. Tr. at 15-19. The State reported in its March 8, 1996 letter that it has placed all eight Suffolk County TCF recipients who "aged out" of their educational placements in July 1995, including one of the two original plaintiffs in this suit.

 These facts demonstrate a modest and limited financial hardship for the County for the ongoing placement costs of plaintiffs and arrears. The County's obligations will be satisfied six months after the date of the order, at which point the State will assume full responsibility for any TCF recipients still unplaced or not otherwise discharged under plans evincing the exercise of professional judgment.

 2. Substantial Injury to Non-Moving Party if Stay Granted

 It is important to understand just how profoundly disabled plaintiffs are. TCF recipients are not likely candidates for de-institutionalization. For instance, plaintiff Lora Hoops, aged twenty-five, diagnosed as functioning in the profound range of mental retardation, with cerebral palsy and a seizure disorder, has been at The Woods School, in Langhorne, Pennsylvania, since she was placed there by ...

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