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September 4, 1997

Lincoln CERCPAC, Stacey Ellis, in her individual capacity and as a general guardian of infant Abraham Ellis, Abraham Ellis, an infant, Margarita Agosto, in her individual capacity and as a general guardian of infant Jesus Cortes, Jr., Jesus Cortes, Jr., an infant, Elsa Lopez, in her individual capacity and as a general guardian of Victor Galarza, Jr., Victor Galarza, Jr., an infant, Ercilia Santos, in her individual capacity and as a general guardian of Anthony Perez, and Anthony Perez, an infant, Plaintiffs,

The opinion of the court was delivered by: MOTLEY


 Plaintiffs, Lincoln Children's Evaluation and Rehabilitation Clinic Parent Action Committee ("CERCPAC"), are an ad hoc committee of parents whose children where once serviced by the now defunct Lincoln Hospital Children's Evaluation and Rehabilitation Clinic ("CERC"). In Spring, 1995, plaintiffs learned that due to federal and state budgetary reductions, the Health and Hospitals Corporation ("HHC"), which manages New York Hospitals, would be relocating CERC's diagnostic and evaluative services to Morrisania Center for Child Development ("Morrisania") and closing CERC on August 31, 1995. On August 29, 1995, plaintiffs moved for an ex parte temporary restraining order ("TRO") to enjoin the closing of CERC two days later, as scheduled.

 On August 30, 1995 plaintiffs commenced the present action seeking a TRO and preliminary injunction to enjoin CERC's closing, class certification, a permanent injunction to enjoin HHC from discriminating against the disabled and from failing to provide an effective grievance procedure or properly evaluate its policies, and a declaratory judgment that HHC had violated both the Rehabilitation Act of 1973 ("Rehab Act") and the Americans with Disabilities Act of 1990 ("ADA") by failing to provide equal access to HHC health care services. Plaintiffs' motion for a TRO was heard on August 31, 1996 and denied the same day by Judge Kaplan. *fn1" On August 31, 1995, CERC was closed as scheduled with only a few staff members remaining to facilitate the transfer of services to Morrisania.

 The court denied the PI on the grounds that plaintiffs failed to make a strong showing of irreparable harm *fn3" due to HHC's transfer of CERC's services and client responsibility to Morrisania, a hospitable located about a mile from CERC. Id. at 495. The court also found that plaintiffs failed to make a clear and substantial showing of a likelihood of success on the merits of their ADA and Rehab Act claims. The court's decision in regards to the ADA and Rehab Act claims was based on plaintiffs' failure to show or claim that the disabled were being denied, based on their disability, health care services or equal access to health care services that were being provided to the non-disabled general public. Id. at 496-97.

 On August 24, 1996, the court issued an order directing the parties to appear for a pre-trial conference on September 26, 1996, given defendant's pending motion to dismiss which was stayed until the court rendered a decision on plaintiffs' PI motion. On September 24, 1996, due to plaintiffs' failure to submit opposition papers, this court issued an order by fax dismissing plaintiffs' claims and granting defendant's motion to dismiss by default, pursuant to Local Rule 3(b). *fn4" On September 30, 1996, a default judgment was entered. On October 8, 1997, plaintiffs moved to vacate entry of default judgment pursuant to Federal Rules of Civil Procedure Rule 55(c) or 60(b). *fn5" On October 23, 1996, plaintiffs appealed this court's default judgment but withdrew their appeal without prejudice to give the court an opportunity to decide on their motion to vacate. On January 23, 1997, the court set aside the default judgment on the grounds that there was confusion as to when plaintiffs' reply papers were due because of the stay of the motion to dismiss. Plaintiffs filed opposition papers on or about February 28, 1997 and defendants filed papers in further support of its motion to dismiss on or about March 2, 1997. For the reasons discussed herein, this court grants defendants motion to dismiss.


 The facts as alleged in the complaint are as follows; HHC is a public New York corporation that receives federal financial assistance and manages New York City's system of municipal hospitals in providing health care services. Under HHC management, Lincoln Hospital has operated CERC since 1968. CERC is certified by the New York State Office of Mental Retardation and Developmental Disabilities as an Article 16 Comprehensive Specialty Clinic for children with developmental disabilities pursuant to 14 NYCRR, part 679, and is exempt from New York State's transition into a managed care system for Medicare recipients. (Complaint PP 24, 29). It serves approximately 3, 500 children at risk of developing or with developmental disabilities in the South Bronx and North Manhattan regional area by providing referral, evaluative, therapeutic, pediatric, rehabilitative, social work and specialized treatment services. (Complaint PP 1, 32).

 CERCPAC is a committee with no formal membership structure but has active members who voice their opinions on health care issues, advocate for children who are CERC outpatients, participate in advisory board meetings, and demonstrate, petition, call, and write letters to HHC officials. (Complaint P 11). Stacy Ellis, the most active CERCPAC member, is the mother of Abraham Ellis, a ten year old child with developmental disabilities that include neurological and orthopedic impairments and mental retardation. (Complaint PP 12, 13). He is unable to walk, sit, dress, eat or use the toilet by himself and uses a specially designed wheelchair. "Because of specialized services received from CERC," Abraham has improved in language receptive skills, in responding to familiar voices, in communicating via generalized gestures and in expressing basic emotions. (Complaint P 13). Margarita Agosto is the mother of Jesus Cortes, Jr., a seven year old child with neurological, orthopedic, and visual impairments and mental retardation. He has been diagnosed with Dandy Walker Syndrome and Joubert's Syndrome, resulting in quadroaresis, legal blindness, a gastrotomy, seizures and respiratory distress, and has had a tracheostomy to relieve respiratory distress. (Complaint PP 14, 15). Jesus cannot tolerate traveling due to his 24 hour dependency on the intake of humidified compressed air due and his need for frequent suctions of excessive secretions.

 Elsa Lopez is the grandmother and primary caretaker of Victor Galarza, Jr. who was born addicted to cocaine and heroin on August 4, 1988. He was referred to CERC at one and a half years of age, was diagnosed with Attention Deficit Disorder, receives 20 mg. of ritalin twice a day to manage his behavior, and attends P.S. 208 which has an on-site health care program that coordinates treatment and health care with CERC. Plaintiffs claim that the effectiveness of Victor's treatment would be hampered if he were transferred to unfamiliar health care professionals. Ercilia Santos is the mother of Anthony Perez, who was born one month premature on August 29, 1993, has Down Syndrome, orthopedic impairments, asthma and chronic pneumonia due to constant congestion, and receives coordinated services at CERC from "specialists in pediatrics, physiatry, ear, nose and throat, neurology, genetics and opthomology." (Complaint P 19). Plaintiffs allege that all of the children's "health and safety depends on the continuity of CERC's "specialized diagnostic, treatment and rehabilitative services." (Complaint PP 13, 15, 17, 19).

 Plaintiffs allege that HHC has recognized in the past that in order to provide equal access to health care services of HHC to developmentally disabled children, they must be provided with services in a specialized setting like CERC. (Complaint P 33). Many of CERC's patients are referred from other hospitals. As of June 30, 1995, CERC has stopped accepting referrals due to HHC intentions of closing CERC on August 31, 1995 and of transferring CERC patients to Morrisania. Plaintiffs allege that Morrisania has admitted in a memorandum dated June 30, 1995 to not providing services to developmentally disabled children under age 5 and to those who do not have a psychiatric diagnosis (Complaint P 41) and has admitted that it will not provide the same variety of services as CERC once the proposal is funded by HHC. Plaintiffs allege that CERC has made no referrals for any of its patients since June 2, 1995 because there are no suitable alternative appropriate health care providers in the area. Plaintiffs also acknowledge that HHC officials have stated that Morrisania will be provided with funds to accept CERC referrals. However, plaintiffs claim that these funds will not be sufficient to "[maintain] a level of health care services that would ensure that [plaintiffs] receive access to the services equal to that provided by HHC to others." (Complaint P 44).

 Plaintiffs alleges that no other facility in the South Bronx and Northern Manhattan regions provides the same quality and quantity of services as CERC and that HHC is discriminating against the disabled by closing this facility and failing to provide grievance mechanism to ensure ...

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