The following papers were read and considered on this Article 78 proceeding:

1. Notice of Petition;

2. Petition with Exhibits A-J;

3. Answer with Exhibits A-K;

4. Affirmation of Steven P. Dzuira;

5. Memorandum of Law;

6. Answer;

7. Memorandum of Law in Reply.

Petitioners are ambulance service providers in Westchester County, New York. They commenced this proceeding seeking review of respondent New York State Emergency Medical Services Council's ("SEMSCO") denial of petitioners' appeals of the Westchester Regional Emergency Medical Services Council's ("WREMSCO") decisions granting respondents Ossining Volunteer Ambulance Corps, Inc's ("OVAC") and Scarsdale Volunteer Ambulance Corps, Inc's ("SVAC") applications to operate ambulance services throughout Westchester County.

No ambulance service operating for profit may operate in New York State unless an emergency medical services regional council issues it an ambulance service certificate (commonly known as a "certificate of need"). PHL § 3005(1), (6). In addition to demonstrating their general competency, applicants for a certificate must make a showing of "public need for [*2]the establishment for additional ambulance services...." PHL § 3005(6). The New York State Department of Health ("DOH") and SEMSCO define "public need" as "the demonstrated absence, reduced availability or an inadequate level of care in ambulance or emergency medical services available to a geographical area which is not readily correctable through the reallocation or improvement of existing resources." DOH Policy Statement, page 4, dated May 26, 2006."

On September 15, 2022, OVAC and SVAC submitted applications to WREMSCO for a certificate of need expanding their operating territories to include all of Westchester County. Following a public hearing wherein petitioners presented opposition to the applications, a hearing officer recommended approval of the applications. WREMSCO adopted the recommendations and issued certificates of need. On appeal, SEMSCO affirmed and this proceeding followed.

Petitioners maintain WREMSCO and SEMSCO erroneously approved the applications based on a claimed need for additional community paramedicine services, in contrast to ambulance services. They contend that OVAC's and SVAC's applications to expand their primary operating territories focused primarily on a perceived need for "low acuity treat and release" community paramedical services and make only passing reference to ambulance services, the services to be rendered pursuant to the certificates of need. Petitioners further seek vacatur alleging the determinations lacked factual support, the public hearings on the applications were not held within 30 days as stated in the DOH policy statement and WREMSCO did not issue the decisions within the statutorily prescribed 60 days. See PHL§ 3008(4). Respondents claim that petitioners lack standing to challenge the determinations and that they were lawfully rendered and rational.

To establish standing a petitioner must show that it has suffered injury-in-fact and that the injury is within the zone of interests protected by the statute at issue. See Gronbach v. New York State Educ. Dept., 221 AD3d 1385 (3d Dept 2023). To constitute injury-in-fact "a claimed injury may not depend upon speculation about what might occur in the future, but must consist of cognizable harm, meaning that a petitioner has been or will be injured."Matter of Brennan Ctr. for Justice at NYU School of Law v. New York State Bd. of Elections, 159 AD3d 1299, 1301 (3d Dept 2018). The alleged actual harm suffered must differ in kind and degree from that suffered by the public at large. See Seneca Lake Guardian v. New York State Dept. of Envtl. Conservation, 229 AD3d 987 (3d Dept 2024). "A petitioner must separately satisfy the zone of interests requirement, which assures that groups whose interests are only marginally related to, or even inconsistent with, the purposes of the statute cannot use the courts to further their own purposes at the expense of the statutory purposes." Gronbach, supra, at 1387 (internal quotation marks omitted).

Petitioners have not demonstrated their standing to challenge the determinations at issue. The petition fails to allege, much less establish, that petitioners have or will suffer a concrete and particularized harm and, accordingly, an injury-in-fact. See Mental Hygiene Legal Serv. v. Daniels, 33 NY3d 44 (2019). Moreover, the only injury that can be gleaned from the record is essentially competitive in nature. The purpose of PHL article 30 is "to promote the public health, safety and welfare by providing for certification of all advanced life support first response services and ambulance services...." PHL § 3000. Economic injury to a rival ambulance service provider is outside the zone of interest PHL article 30 was enacted to protect. See Matter of LaSalle Ambulance Inc. v. New York State Dept. of Health, 245 AD2d 724, 725 (3d Dept 1997) [*3]("From this it is clear that the legislative intent was to protect the public and not to shield ambulance services from competition.").

Petitioners' contention that they have standing pursuant to PHL § 3008(5) also lacks merit. That section states that "any concerned party may appeal the determination of [a] regional council...." Here, petitioners are challenging a determination of the state council, not the regional council. Thus, even if petitioners qualified as "concerned parties" within the meaning of PHL §3008(5), that does not confer standing to challenge a state council determination. To obtain judicial review of the state council's determination petitioners must establish their standing by demonstrating injury-in-fact and that the harm suffered satisfies the zone of interest test. As set forth above, petitioners fail to make this showing because PHL § 3008(5) was not enacted to provide rival operators redress for competitive injury. See Id.; Matter of Troy Ambulance Serv. Inc. v. New York State Dept. of Health, 260 AD2d 715 (3d Dept 1999).

Even if petitioners had standing, they fail to demonstrate that the challenged determinations were made in violation of lawful procedure, affected by an error of law, arbitrary and capricious or an abuse of discretion. See N. Shore Ambulance and Oxygen Serv. Inc. v. New York State Emergency Med. Services Council, 200 AD3d 1527 (3d Dept 2021); CPLR 7803(3). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. When a determination is supported by a rational basis, it must be sustained even if the reviewing court would have reached a different result." John E. Andrus Mem., Inc. v. Commr. of Health of New York State Dept. of Health, 225 AD3d 959, 961 (3d Dept 2024).

The hearing officer's Report and Recommendation provided ample evidentiary support for WREMSCO's determination that public need existed for the applicants' ambulance services. In addition to considering their applications, the hearing officer based his recommendation on letters of support from representatives in the healthcare community and testimony at the public hearing. Notably, representatives from OVAC and SVAC explained that their intention was to make themselves available to respond to mutual aid calls outside their current geographic area of operation when all other resources have been depleted. They maintained that the volume of calls for transportation along with current inadequate levels of ambulance services evinced a dire need for their ability to respond in all of Westchester County. The applicants presented unrefuted evidence that former county-wide operator Mobile Life Support Services suspended its operations as of August 16, 2022, and that it had received 622 requests for service in 2021 and 376 requests in 2022 prior to ceasing operations. Moreover, various healthcare professionals explained that the lack of ambulance services was a systemic problem in Westchester County that predated the COVID-19 pandemic. One doctor indicated that this dearth was apparent as early as 2008 and expressed dismay that there had been "no substantial changes within the EMS system in the County" since that time. Based on the foregoing, the finding of public need by WREMSCO and SEMSCO's determination denying petitioners' appeal was rational.

The fact that petitioners' opposition may have presented some evidence to undermine a finding of pubic need does not warrant reversal. Where "conflicting evidence in the record is sufficient to support either of the two opposing conclusions as to public need....the choice of the agency responsible for making the final determination cannot be disturbed." Matter of Tri-State Ambulance Serv., Inc. v. State Dept. of Health, 114 AD2d 546, 548 (3d Dept 1985). "By statute, the Council is the administrative agency responsible for making a final determination on public [*4]need (Public Health Law § 3002[3]) and, in reviewing such a determination, the courts cannot substitute their view of the factual merits of the controversy for that of the administrative agency." Id., at 547-548. Petitioners' contention that WREMSCO erred by basing its determination of public need on a perceived need for community paramedicine and not ambulance services is unavailing and otherwise belied by the record. While OVAC's and SVAC's applications devoted time to discussing their past record administering paramedicine services during the COVID-19 pandemic, the hearing officer's Report and Recommendation explicitly stated and any such evidence was outside the scope of proceeding and would not be considered for purposes of rendering a determination. Petitioners' remaining contentions, to the extent not expressly discussed herein, have been evaluated and determined to be without merit. Wherefore, it is

ORDERED that the petition is denied.

The foregoing constitutes the decision order and judgment of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.