LIBERTY — A state Supreme Court judge has temporarily stopped Sullivan County from moving forward with the closure of the Care Center at Sunset Lake while a lawsuit challenging the process works its way through court.

Justice Kevin R. Bryant signed a temporary restraining order Sept. 16 barring Sullivan County, County Manager Joshua Potosek and the state Department of Health from further implementing the closure plan. The order specifically prohibits further resident transfers and staff layoffs and requires the county to continue providing required services to residents.

Bryant found that the petitioners had demonstrated “good cause” and “immediate irreparable harm,” although the two-page order does not explain the factual basis for that finding. The petition argues that continued transfers could expose elderly residents, particularly those with dementia, to “transfer trauma,” or relocation stress, which it says can cause declines in physical health, cognition and emotional well-being.

The order is a temporary restraining order, not a preliminary injunction or a final ruling on the lawsuit. It freezes the closure process long enough for both sides to appear before the court.

A hearing on the petitioners’ request for a preliminary injunction is scheduled for 1:30 p.m. Monday, Sept. 21, in Ulster County Supreme Court. A preliminary injunction could keep the restrictions in place while the underlying Article 78 proceeding continues. Article 78 proceedings allow courts to review actions and determinations by government bodies.

The case reached Bryant after five Sullivan County judges recused themselves.

The Sept. 8 petition was filed by Care Center resident Janet Mentnech, her sister Bonnie Lewis and employees Wendy Zeidner, Dawn Halstead, Leslie Hakans and Mildred Jackson. It alleges violations of the Open Meetings Law, Freedom of Information Law, Public Health Law and state and federal Worker Adjustment and Retraining Notification laws.

Much of the dispute centers on a March 26 executive session.

Official county records show eight of the Legislature’s nine members were present. Terry Blosser-Bernardo was absent. The public minutes record that legislators entered executive session at 9:47 a.m. “to discuss contracts,” but contain no motion, tally or other record of a vote to close the Care Center.

When legislators publicly discussed the meeting Aug. 20, District 5 Legislator Cat Scott recalled the decision differently.

“It happened so quickly that some of us were in shock. And it was a five to four,” Scott said, adding that she had asked Potosek whether the decision had to be made that day.

Blosser-Bernardo immediately questioned that tally, noting she had not been present.

Scott then identified herself, Luis Alvarez, Matt McPhillips and Brian McPhillips as voting against closure. Alvarez said he could not remember how he voted. Legislature Chair Nadia Rajsz maintained the vote had passed, saying there had been enough votes and that one legislator simply did not remember.

County officials and legislators have previously said they could not publicly discuss the proposed closure while it was under review by the state Department of Health. State nursing-home closure guidelines prohibit public announcements or disclosure of a potential closure to residents, staff or the public until DOH has issued written approval of an orderly closure plan.

The county announced the closure Aug. 19, saying DOH had approved its plan. The Democrat has filed a Freedom of Information Law request seeking the approval letter and the date it was issued.

The state Committee on Open Government subsequently reviewed the March 26 minutes and advised that discussion of “contracts,” by itself, was not a permissible reason to enter executive session under the Open Meetings Law. The committee also said that if a formal vote occurred during the session, minutes ordinarily should have recorded the action, date and vote. It noted, however, that matters made confidential by another state or federal law can be exempt from Open Meetings Law requirements.

According to a certification from Sullivan County’s FOIL officer, the county certified that it found no records of official actions or votes taken in executive sessions between Feb. 1 and April 30.

The petition also alleges violations of the WARN Acts. The Worker Adjustment and Retraining Notification laws require covered employers to give workers advance notice before certain plant closings or mass layoffs. Federal law generally requires 60 days’ notice, while New York generally requires 90 days for covered private employers.

The petition alleges that approximately 90 Care Center workers did not receive the required notice. Both state and federal WARN laws, however, generally exclude regular state and local government employers; Sullivan County owns the Care Center and employs its workers.

The county began the closure process with 93 long-term residents. More than 60 had been relocated by the time Bryant issued the temporary restraining order, according to recent reporting by the Times Union.

Sullivan County has said financial pressures and its inability to transfer operations to consulting firm Infinite Care led it to pursue closure. Rajsz said Aug. 19 that a majority of legislators had concluded taxpayers could no longer afford continued operation of the facility.

The Democrat has requested additional comment from the Sullivan County Attorney’s Office regarding the pending litigation.

Press conference outside County Government Center

By Matthew Albeck

Staff Reporter

MONTICELLO – Even before legislators had finished the day's voting on September 17, a large group of opponents to the care center's closure had begun a quiet exodus.

After holding up signs and making public comments to the legislators deriding the care center's closure, these residents left the legislature meeting early to attend a press conference held by civil rights lawyer Michael Sussman outside the building.

The press conference came a day after Sussman had successfully convinced State Supreme Court Justice Kevin R. Bryant to issue a temporary restraining order that blocks plans to complete the facility's closure, according to published reports.

"We know that there was a rush in the last week or 10 days to dispossess people of their home, that facility," said Sussman. "People are going to have to be accountable for the decision and the way the decision was made."

Sussman clarified that there were two issues with the closure: how the decision was made, and the decision itself. He explained that courts are more reluctant to intervene in the decision itself but are willing to intervene and ensure that proper procedure is followed. "That's not been done here, which is a great tragedy for people who've been rushed out of their homes," he said.

"It's a very important issue to this county," added Sussman. "It's a morally important issue, it's a legally important issue, and it obviously has economic consequences."

Earlier in the day District 5 Legislator Cat Scott expressed disappointment in the Care Center's closure: "I don't know what's going to happen to the residents here, because we are losing services faster and faster. I'm not happy with how this closure's being handled, it feels like a firesale, and it feels like they are discharging people faster than they can wheel them to the door.”