UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

JOHN E. ANDRUS MEMORIAL, INC. :

(d/b/a ANDRUS ON HUDSON), :

:

Plaintiff, :

-against- :

:

RICHARD F. DAINES, as Commissioner of the :

New York State Department of Health, :

:

Defendant. :

:

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Index No. 2007 Civ. 3432

(CLB) (MDF)

MEMORANDUM OF LAW IN RESPONSE TO DEFENDANT’S

OBJECTIONS TO REPORT AND RECOMMENDATION

AND REQUEST FOR EMERGENCY RELIEF

CADWALADER, WICKERSHAM & TAFT

One World Financial Center

New York, New York 10281

Attorneys for Plaintiff

Case 7:07-cv-03432-CS-MDF Document 44 Filed 06/30/2008 Page 1 of 15
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PRELIMINARY STATEMENT

Plaintiff John E. Andrus Memorial, Inc. (“the Andrus”), a not-for-profit nursing 

home located in Hastings-on-Hudson, New York, submits this memorandum of law in opposition 

to defendant’s unsigned Order to Show Cause for Modification of Temporary Restraining Order 

and request for other “emergency relief”; and in response to his objections to the Report and 

Recommendation of the Hon. Mark D. Fox dated June 25, 2008 (the “Report and 

Recommendation). The relevant facts are placed before the Court in the affirmation of Brian 

McGovern dated June 30, 2008. 

Contrary to defendant’s moving affidavit (¶ 3), the current application to narrow 

the scope of the Temporary Restraining Order issued by Judge Brieant on April 23, 2008 (the 

“TRO”) – which would permit the Department of Health to issue an amended operating 

certificate to the Andrus – represents defendant’s third request to this Court for essentially the 

same relief. At bottom, the application seeks reargument of the scope of injunctive relief argued 

and decided by Judge Brieant on April 23, 2008, 65 days ago. Based on the June 27th application 

filed by defendant, as such, the application is plainly untimely under Local Rule 6.3, requiring 

any motion for reconsideration or reargument to be made within ten days of the TRO, or by May 

7, 2008 (excluding Saturdays and Sundays pursuant to Fed. R. Civ. P. 6(a)). 

Nor has there been any change in circumstances, as to either the material facts or 

controlling law, to justify such an out-of-time modification of the TRO. Instead, this latest 

application represents a second blatant attempt at an “end run” around Judge Brieant’s TRO 

issued over two months ago. Defendant cites no authority, and there is none, for such a collateral 

attack on Judge Brieant’s ruling through an application to a different judge of this Court. 

Defendant seeks nothing more than to get what now is a third ruling from a third judge, for no 

other reason than that the two prior applications before Judge Brieant and Magistrate Fox were 

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unsuccessful, and defendant’s time to appeal the TRO to the United States Court of Appeals has 

long expired.

Further, even assuming that the application were timely and valid grounds existed 

for revisiting Judge Brieant’s TRO, it would be inequitable to afford the relief requested by the 

defendant at this late date. The preliminary injunction hearing, held last week on June 25th and 

June 26th and now concluded, was delayed at defendant’s instance – he did not make any of three 

witnesses available for deposition (as agreed, to be deposed before the preliminary injunction 

hearing) until, at the earliest, June 3, 2008. The defendant was well aware of both any supposed 

defect in the TRO and of the date of the preliminary injunction hearing, for well over a month, 

but took no action to secure the rights he now claims are in jeopardy until learning that Judge 

Brieant was unavailable due to illness. 

Finally, the sole “precedent” cited by the defendant for issuing an amended 

operating certificate provides no legal authority or factual basis for allowing that relief in this 

action. In re Legacy Healthcare, LLC, Bk No. 1-05-11270 (Bankr. W.D.N.Y. June 27, 2008). 

As a preliminary matter, the defendant in Legacy Healthcare, Williamsville Suburban, timely 

moved for reconsideration before Bankruptcy Judge Kaplan of Judge Kaplan’s prior order, 

issued on May 22, 2008, enjoining issuance of an amended operating certificate. Moreover, the 

nursing home in that matter, a proprietary facility operating in Williamsville, New York, failed 

to make the showing of “irreparable harm” presented by the Andrus. Indeed, the nursing facility 

there was cited by the federal Centers for Medicare and Medicare Services (“CMS”) as one of 

the worst nursing homes in New York State in terms of quality of care to its residents. By 

contrast, the Andrus has shown that the Berger Commission overstated by almost double the 

deficiencies cited in one of the Andrus’ annual resident surveys, and none of those citations 

involved a finding of harm to any of its residents.

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At all relevant times from the issuance of the Berger Commission’s Final Report 

in November 2006 through this day, the Andrus has continued operating as a nursing home 

pursuant to an operating certificate without any limitation. With this untimely application, 

defendant again seeks to upset the status quo by amending the operating certificate with a date 

certain for its termination.

The Andrus will be harmed, irreparably, by the amendment of its operating 

certificate. With an average length of stay of four and a half years, residents come to the Andrus 

primarily from the “word of mouth” of Andrus residents and family members, with the 

expectation that the Andrus will remain operational for their remaining years. The issuance of an 

amended operating certificate, be it with a six-month, one-year, or other longer-period term, 

would send the ominous message to its current and prospective residents and its staff as well as 

to the health care provider community. As a consequence, many residents may leave, other

elderly interested in long term care will be referred elsewhere, and employees will look for more 

secure employment. That will very likely adversely and immediately impact its occupancy and 

revenues, and jeopardize its continued viability at a nursing home. What is more, because this 

Court cannot award money damages against the State under the Eleventh Amendment to the 

United States Constitution, it can never be made whole from whatever harm it may suffer. For 

the reasons detailed below, the application should be denied in all respects.

BACKGROUND

In November 2006, the New York State Commission on Health Care Facilities in 

the 21st Century (the “Berger Commission”) issued its Final Report, which – without any prior 

notice to the Andrus or opportunity to be heard – included a recommendation that the Andrus’ 

nursing home be closed. At the preliminary injunction hearing, the Andrus’ Executive Director 

testified that she had informed the Andrus’ residents and others of the Berger Commission’s 

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recommendations, but also told them, accurately, that “only the Department of Health could 

implement those recommendations, and that we were going to fight . . . .” Transcript of April 23, 

2008 (“Apr. 23, Tr.”) at 278:12-14.

The Andrus commenced this litigation on April 30, 2007, challenging on 

constitutional grounds the recommendation made by the Berger Commission that the Andrus 

close its nursing home by June 30, 2008. Defendant moved for summary judgment in May 2007, 

and oral argument was heard on that motion on September 7, 2007. Both parties consented to a 

stay on September 7, 2007 to await determination by the New York Court of Appeals of a case 

challenging the legislation which created the Berger Commission (“the Enabling Legislation”). 

This stay was continued voluntarily by both parties again in December 2007.

The stay prevented both the Andrus from conducting any further discovery and 

the defendant from implementing the Berger Commission recommendations with respect to the 

Andrus. The Andrus’ Executive Director informed its residents and others of the stay and 

continued stay.

By Memorandum Order dated March 10, 2008, the Court denied defendant’s 

motion for summary judgment in all respects. On March 28, 2008, the Andrus committed to 

move for a preliminary injunction against implementation of the closure recommendation on an 

accelerated schedule. The Andrus’ motion papers were timely submitted on April 11, 2008, and 

defendant’s opposition papers were initially due on April 25, 2008. 

Counsel for the defendant requested an extension of the return date for personal 

reasons, to which the Andrus consented provided that the defendant agreed to maintain the status

quo. The defendant would not agree and for the first time threatened to issue an amended 

operating certificate to the Andrus. In light of this threatened action, on April 23, 2008, the 

Andrus sought a temporary restraining order (“TRO”) against issuance of an amended operating 

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certificate. The arguments and grounds raised by defendant in opposition to the TRO application 

are virtually identical to those advanced by defendant on this application. See Apr. 23 Tr. at 6:6-

7:9, 11:14-21; see also Exhibit A to McGovern Affirmation. 

After hearing and considering the issues and arguments raised by both parties,

Judge Brieant granted the TRO “pending hearing and determination of the preliminary injunction 

motion”, with an explicit injunction against “issuing an amended operating certificate.” 

Defendant did not seek reconsideration or reargument of the TRO by the May 7, 2008 deadline.

Although Judge Brieant set an initial return date of May 7, 2008 for the motion, 

the parties and the Court understood at the April 23, 2008 hearing that the return date would be 

adjourned and the TRO, extended until the three depositions sought by the Andrus were 

scheduled and completed, and the evidentiary hearing on the motion could be held. Two days 

earlier, on April 21, 2008, the Andrus had offered 15 dates, from late April through the end of 

May 2008, for conducting the three depositions and holding the evidentiary hearing. However, 

the earliest date that the defendant offered any of the three deponents for deposition was June 3, 

2008.

Defendant served his opposition papers on May 1, 2008. On May 2, 2008, 

counsel for the Andrus, after confirming the contents of his letter with defendant’s counsel, 

wrote to Judge Brieant confirming that the parties would not proceed on May 7, 2008 and that 

the Court had found good cause for extending the TRO past the initial ten day period as 

contemplated in Fed. R. Civ. P. 65(b). 

On June 18, 2008, the Court informed counsel that Judge Brieant would be unable 

to conduct the evidentiary hearing on the Andrus’ motion for preliminary injunction; that the 

hearing had been referred to Magistrate Judge Fox but would proceed as scheduled on June 25, 

2008; and that Magistrate Judge Fox had scheduled a pre-hearing conference with the parties on 

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Monday, June 23, 2008. At the June 23rd conference – for the first time and precisely two 

months to the day after Judge Brieant issued the TRO – defendant challenged the continued 

validity of the TRO based on a purported lack of good cause found by Judge Brieant on the 

April 23, 2008 record, and affirmatively asked Magistrate Judge Fox to reconsider and modify 

the scope of the TRO to allow defendant to amend the operating certificate of the Andrus by 

June 30, 2008. 

At the June 23, 2008 conference, Magistrate Judge Fox requested briefs and 

scheduled oral argument on defendant’s application for the following day, June 24, 2008. After 

receiving the parties’ briefs and hearing argument, Magistrate Judge Fox issued his Report and 

Recommendation the following day, June 25, 2008, the same day that the preliminary injunction 

had begun. The parties consented to shorten the period in which to submit any objections to two 

days. In the Report and Recommendation, Magistrate Judge Fox concluded that Judge Brieant 

had found good cause on the record and that the TRO remained in effect. Magistrate Judge Fox 

further concluded: 

There will be irreparable harm to the Andrus if it is issued a new 

operating certificate with an expiration date of June 30, 2008 or 

any other date, because the Andrus is required under Department

of Health regulations to notify “each patient or resident, his next of 

kin, his sponsor and his physician. . . immediately upon receipt of 

notification by the Department revoking, suspending, limiting, 

annulling or refusing to issue the operating certificate.” N.Y. 

Comp. Codes R. & Regs. tit. 10, § 401.3(h). The Andrus is also

required to post the operating certificate “conspicuously.” N.Y. 

Comp. Code R. & Regs. tit. 10, § 401.2(c). The Federal Centers 

for Medicare and Medicaid Services may sanction the Andrus for 

failure to operate in compliance with all applicable State 

regulations. 42 C.F.R. 483.75(b). The Andrus’s compliance with 

these regulations, upon receipt of an amended operating certificate 

with an expiration date, would cause immediate, likely irreparable 

adverse impact on the Andrus’s viability.

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At the preliminary injunction hearing held on June 25 and June 26, 2008, the 

Andrus presented evidence of the “irreparable harm” posed by the issuance of an amended 

operating certificate to its operations and continued viability. 

At approximately 9:10 a.m. on the morning of June 27, 2008, the day that

objections to the Report and Recommendations were due, the attorney for the defendant

informed counsel for the Andrus that he intended to appear in court to request unspecified 

“emergency relief”.

ARGUMENT

POINT I

DEFENDANT’S APPLICATION FOR A

“MODIFICATION” OF THE TRO IS UNTIMELY

Significantly, defendant does not cite any authority for this, the second 

application to “modify” Judge Brieant’s TRO. That is because as noted earlier, defendant is, for 

all practical purposes, seeking to reargue or reconsider the application for a TRO decided by 

Judge Brieant `on April 23, 2008. 

The timing for making such a motion is governed by S.D.N.Y. [CITE, 

CORRECT FORM] Local Rule 6.3, which requires “[a] notice of motion for reconsideration or 

reargument of a court order determining a motion within ten (10) days after the entry of the 

court’s determination of the original motion.” (emphasis added). Thus, to be timely under Local 

Rule 6.3, any motion for reconsideration or reargument would have been due no later than May 

7, 2008. Instead, defendant did not initially seek “modification” of the TRO until 61 days later. 

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Defendant has not established, nor can he establish, that he was unaware of the 

entry of the TRO on April 23, 2008 or of its extension

1

, beyond May 7, 2008. The Court and 

counsel knew well in advance of May 7, 2008 that the May 7th return date for the preliminary 

injunction hearing would have to be adjourned, and specifically that the hearing would not be 

held until the three depositions had been scheduled and completed. Simply put, defendant 

cannot be excused for failing to timely move for reconsideration. 

Further, even assuming, for argument’s sake, that the TRO was considered an 

appealable order that could be taken to the Second Circuit, the time for any appeal has also long 

since run. A temporary restraining order that extends beyond 20 days may be appealed, if at all, 

within the prescribed time period that governs appeals from a preliminary injunction. See Pan 

Am. World Airlines, Inc. v. Flight Engineers Int’l Assoc., 306 F.2d 840, 843 (2d Cir. 1962). A 

preliminary injunction is appealable pursuant to 28 U.S.C. § 1292, but notice of appeal must be 

filed within 30 days. Fed. R. App. P. 4(a). At best, to seek any appellate review of the TRO, the 

defendant was required to have filed notice of appeal no later than June 13, 2008 (30 days after 

expiration of the initial 20 days of the TRO). 

In sum, there is no justification for defendant’s failure to seek either reargument 

or appeal of the TRO, as the defendant was aware of the June 30, 2008 deadline for 

implementation of the Berger Commission recommendations since April 23, 2008 and, indeed, 

from the very outset of the litigation. As such, defendant is time-barred for seeking review of the 

TRO, collaterally or otherwise, at this late stage. 

1 Curiously, in his moving papers, defendant asserts that he was aware of these issues but had decided 

not to raise them until June 25, 2008, at the preliminary injunction hearing scheduled before Judge 

Brieant. He has offered no explanation as to why he would choose to wait to do so until long after the 

period for seeking reargument or reconsideration had expired.

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POINT II

DEFENDANT HAS FAILED TO DEMONSTRATE THAT

THE COURT HAS OVERLOOKED ANY FACTS OR

CONTROLLING LAW THAT JUSTIFY MODIFICATION

Even if somehow defendant were not time-barred from seeking reargument of 

Judge Brieant’s TRO, defendant would have no valid basis for obtaining relief in any event. 

Local Rule 6.3 requires a party seeking reconsideration or reargument to set forth “the matters or 

controlling decisions which counsel believes the court has overlooked.” Further, any fact or law 

that counsel believes was overlooked must be so material that it would alter the outcome of the 

order. Toth v. Bd. of Ed., Queens District, 2007 WL 3034078, No. 07-CV-3239 (E.D.N.Y. Oct. 

15, 2007). Inasmuch as a reargument or reconsideration motion is not the proper vehicle for an 

appeal, the party may not simply rehash points that previously proved unavailing nor raise 

arguments that could have been, but were not raised, on the original application. Wechsler v.

Hunt Health Sys., Ltd. , 186 F.Supp.2d 402, 410, 413 (S.D.N.Y. 2002). 

Defendant can point to no “overlooked” facts or decisional law that would justify 

reconsideration of the TRO. Suffice it to say that the substitution of a jurist due to the assigned 

judge’s unavailability does not reopen a prior motion for reconsideration in the absence of a 

timely motion and an otherwise proper basis. 

In any event, Judge Brieant himself was clearly made aware of the June 30, 2008 

deadline when he issued the TRO, as it was defendant who explicitly raised it on April 23, 2008. 

During that hearing, counsel for the defendant stated: “And the reason the Department is 

concerned that [the amended operating certificate] needs to be issued before June 30 is because 

the enabling legislation states its authority, the Department of Health’s authority, terminates on 

June 30th.” Transcript of April 23, 2008 Conference, 11:14-18. In response, Judge Brieant 

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stated: “Well, if you would have issued it but for the Court’s order, I think that’s all you need, if 

anything, at some point.” Id. at 11:19-21. 

Judge Brieant clearly considered the June 30, 2008 expiration date in the Enabling 

Legislation and the State’s claimed need to issue the amended operating certificate by June 30th, 

and determined to issue the TRO regardless. 

POINT III

THERE HAS BEEN NO CHANGE IN CIRCUMSTANCES

THAT JUSTIFIES MODIFYING THE INJUNCTIVE RELIEF GRANTED

Though a court has discretion to modify an injunction, generally it may do so only 

when there has been a change in facts or law. King-Seeley Thermos Co. v. Aladdin Inds., Inc., 

418 F.2d 31, 35 (2d Cir. 1969); S.E.C. v. Vision Communications, Inc. 94-CV-0615 (S.D.N.Y. 

Mar. 6, 1995) (noting also that “hardship” alone does not constitute a change in circumstance) 

(citing Huk-a-Poo Sportswear, Inc. v. Little Lisa, Lta., 74 F.R.D. 621 (S.D.N.Y. 1977). Here, 

defendant can establish no change in facts or law that would justify modifying the TRO. The 

parties are in exactly the same positions as they were in April when the TRO was initially 

granted. In fact, the arguments now being made by the defendant mirror the arguments raised in 

opposition to the TRO, which Judge Brieant found to be unavailing. 

Moreover, the order of the Bankruptcy Court judge in Legacy Healthcare, whose 

ruling does not govern this Court, does not constitute a change in the controlling law. That 

“precedent” should not otherwise be followed in this case, for several reasons. The facility at 

issue in Legacy Healthcare was identified by the federal Centers for Medicare and Medicaid 

Services as the “Worst of the Worst”, and by virtue of its bankruptcy proceeding, has continued 

to experience financial difficulties. The Legacy Healthcare facility did not, and could not, make 

the showing of irreparable harm presented by the Andrus where, in contrast, the Andrus provides 

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quality care to its residents, is nearly fully occupied, and is otherwise financially sound. Further, 

the facility in Legacy Healthcare had already submitted a closure plan, which was approved by 

the Department of Health. In that circumstance, issuing an amended operating certificate was 

merely in furtherance of the facility’s closure plan. Here, the Andrus has not submitted a closure 

plan, and obtained a stay against the requirement to do so in September 2007.

POINT IV

THE EQUITABLE CONSIDERATIONS DO NOT

WEIGH IN FAVOR OF MODIFYING THE TRO

Though a district court judge can modify an interlocutory order, it may not do so 

when such action requires overturning another judge of the same district, except for the “most 

cogent reasons.” Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963). 

Here, putting aside that defendant is time-barred from applying for the instant relief, defendant 

has failed to put forth any cogent reasons not previously considered and rejected by both Judge 

Brieant and Magistrate Judge Fox.

Whatever time bind the defendant now faces is largely of his own making, and is 

not the fault of the Andrus. Indeed, it is because of delays occasioned by the defendant’s 

inaction that the hearing on the Andrus’ preliminary injunction was not scheduled until June 25 

and June 26, 2008. The defendant was aware of these hearing dates by at least May 22, 2008, as 

well as the likelihood that a decision on the Andrus’ motion would not be issued until after 

June 30, 2008. Nevertheless, defendant took no steps to seek modification of the TRO until two 

days before the hearing, immediately after hearing that Judge Brieant was unavailable. In fact, 

the defendant did not produce the first of the three requested witnesses for deposition until 

June 3, 2008.

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Further, defendant’s assertion that no judge has addressed the merits of the 

Andrus’ case is patently untrue. Judge Brieant denied the defendant’s motion for summary 

judgment on all claims, and in so doing, rejected defendant’s arguments seeking dismissal of the 

claims as a matter of law. See Memorandum and Order dated March 10, 2008. Further, 

Magistrate Judge Fox directly addressed the merits of the Andrus’ claims in his Report and 

Recommendation, finding that, if the Andrus proved at the evidentiary hearing the lack of notice 

to the Andrus and the multiple errors contained in the Final Report about the Andrus’ occupancy, 

financial condition, and the quality of care – which the Andrus has now done – the Andrus will 

have established a likelihood of prevailing on both its procedural and substantive due process 

claims. 

Moreover, where a party has consented to certain relief, modification is not 

justified merely because they are dissatisfied with the bargain struck. Here, the parties clearly 

contemplated that the TRO might extend past June 30, 2008. At the hearing on the Andrus’ 

application for a TRO, counsel for the defendant, after agreeing that a TRO could be extended 

until the evidentiary hearing was held, stated: “My main concern, your Honor, is that the TRO be 

issued, because that would be a clear indication that my client is precluded from proceeding with 

issuing the amended certificate, and that way there will be no question later on that it was not 

able to proceed with meeting the Berger Commission’s mandate by June 30th.” See Transcript of 

April 23, 2008 hearing, 36:13-18. The precise situation the defendant is now faced with was 

contemplated on April 23rd; then and now, defendant’s “only concern” was that the TRO would 

extend beyond June 30th. 

Defendant argues that the Andrus would receive a “windfall” unless the amended 

operating certificate is issued. However, it is the defendant who, having failed to convince both 

Judge Brieant and Magistrate Judge Fox that the defendant should be allowed to issue that 

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document, now seeks a third opportunity to present the same failed arguments via a collateral 

attack on Judge Brieant’s TRO, with Judge Brieant ill and presently unavailable to adjudicate the 

case. By contrast, if the amended operating certificate is issued, it is the Andrus that will be 

forever precluded from obtaining relief against the resulting harm, because under the Eleventh 

Amendment to the United States Constitution, it does not have a remedy at law – money 

damages – to compensate it before this Court. The Eleventh Amendment bars the award of 

money damages to the Andrus from the defendant, a state official, in Federal Court. See

Edelman v. Jordan, 415 U.S. 651, 663 (1974) (citing Great N. Life Ins. Co. v. Read, 322 U.S. 47 

(1944); Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573 (1946)). 

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CONCLUSION

For the foregoing reasons, as well as the reasons set forth in the Andrus’ motion 

for preliminary injunctive relief and application for a temporary restraining order, the request of 

the defendant for a modification of the TRO should be denied, and the defendant should continue 

to be prevented from taking any steps to implement the Berger Commission’s recommendation 

to close the Andrus nursing facility, including the issuance of an amended operating certificate.

Dated: New York, New York

June 30, 2008

CADWALADER, WICKERSHAM & TAFT LLP

By: /s/Brian T. McGovern

Brian T. McGovern (BM-5453)

Attorneys for Plaintiff

John E. Andrus Memorial, Inc. 

(d/b/a Andrus on Hudson)

One World Financial Center

New York, New York 10281

Telephone: (212) 504-6000

Of Counsel:

Peter G. Bergmann

Ariel V. Gordon

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