The first decision made regarding the future of St. Paul's, which sparked all those that have come since, was officially made on June 5, 1997 when then Mayor Frank A. Tauches, Jr., and Trustees Judith A. Asselta, Harold P. Hecken, Jr., Robert H. Lewis, Peter A. Bee, Laurence J. Kettner, and Bruce A. Torino (Eileen J. Collins abstained) voted to approve a resolution to lease the main building and some surrounding land to CareMatrix to create an assisted living facility within the building.

The resolution read:

"Whereas, prior to its acquisition by the Village of Garden City, the fields and buildings at the St. Paul's School were used as a school and the main building was primarily residential in character;

"Whereas, an engineering study has determined that the Main Building at St. Paul's, while structurally sound, is in deteriorating condition and in need of significant immediate repairs and renovations;

"Whereas, St. Paul's is architecturally significant, an important part of the history of the Village and we should endeavor to preserve it for the continued use and enjoyment of the Village;

"Whereas, since its acquisition by the Village, the open fields, Cluett Hall and the Field House have become important and integral parts of the Village's Recreation and sports programs, however, the condition of the main building requires extensive funds to repair, renovate, operate, and maintain;

"Whereas, a distinguished committee was appointed to search for and investigate possible options for the use of the main building at St. Paul's contingent upon strict criteria, which included the repair, renovation and retention of the main building;

"Whereas said Committee, after years of effort determined that the option which best satisfied the criteria established for the use of St. Paul's was senior assisted living care;

"Whereas, there is a significant increasing segment of our population that would benefit from senior assisted living care, which would enhance the quality of life for those individuals;

"Whereas, the Board of Education explored the possibility of utilizing and converting St. Paul's into a state of the art high school, however, after substantial investigation and numerous public hearings, withdrew said proposal from consideration;

"Whereas no other viable concept or proposal has been submitted which meets the economic and strict criteria established for the Mayor's Committee;

"Whereas the continued vacancy of the main building is detrimental to its continued viability;

"Now be it resolved, that the concept of utilizing the Main Building at St. Paul's for senior assisted living care is the option most consistent with preserving the prior residential character of the main building, enabling the continued use of the fields and ancillary buildings for the Village's recreation and sports programs and providing an economically sound mechanism whereby the main building will be repaired, renovated and its existence protected."

This vote then led to the subsequent negotiations with CareMatrix and spawned the pending lawsuit brought by James M. Kenny, Helen M. Kenny, Lawrence Rafferty, and Barbara Rafferty. The plaintiffs argue that the lease is illegal because the property was purchased by the Village for public use and therefore cannot be leased to a private company for private use.

The most recent decision in this case was made by appellants-respondents Judges Fred T. Santucci, JP; Gabriel M. Krausman; Howard Miller; and Sandra J. Feuerstein, JJ. The judges stated:

"In an action, inter alia, pursuant to General Municipal Law §51 for a permanent injunction enjoining the defendants from leasing to a private entity a portion of a 48.6 acre parcel of real property which was allegedly acquired by condemnation solely for public and recreational uses, the defendants appeal from so much of an order of the Supreme Court, Nassau County (Burke, J.), dated Nov. 25, 1998, as denied their motion to dismiss the complaint for failure to state a cause of action or, in the alternative, for summary judgment dismissing the complaint, and the plaintiffs cross-appeal from so much of the same order as denied their cross motion for partial summary judgment on the first cause of action.

"Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

"The Supreme Court properly denied the defendants' motion to dismiss the complaint for failure to state a cause of action or, in the alternative, for summary judgment dismissing the complaint. There are questions of fact concerning, inter alia, whether the Village of Garden City 'manifested unequivocally an intention to dedicate the municipally-owned property to public use' (Matter of Ackerman v. Steisel, 104 AD2d 940, 941, 480 NYS 2d 556, affd 66 NY2d 833, 498 NYS2d 364, 489 NE2d 251).

"The parties' remaining contentions are without merit."

This all means that the case will have to go to trial and that the Appellate Court would not give summary judgment as requested by both parties.

The case was brought before the Supreme Court of the State of New York last year, at which time both parties argued that the judge should decide the case based upon the papers presented. In December of 1998, the Honorable John W. Burke of The Supreme Court of the State of New York dismissed the cross-motions of the plaintiffs (James M. Kenny, Helen M. Kenny, Lawrence Rafferty, and Barbara Rafferty) and the defendants (the Board of Trustees of the Incorporated Village of Garden City) for summary judgment. Village Counsel Gary Fishberg explained at a Dec.17 Village Board meeting, "Both sides made motions for summary judgment, feeling that there were no triable issues of fact and so the court could decide on the issues presented in the papers. The judge for some unknown reason decided that there were triable issues." Fishberg contended that Justice Burke did not explain what the triable facts were, but that the judge had decided that the case should go to trial.

Fishberg stated at the time, "Both sides have filed a notice of appeal - both sides are still in accord that the Nassau County judge should decide on the papers. We've filed a motion to have our appeal heard faster, and hopefully we'll get a decision from the Appellate Court either deciding that there was a mistake on the part of the lower court and sending it back for a decision, or deciding it themselves on the papers." Fishberg added that he was hopeful that the Appellate Court would decide to go ahead and render a decision on the papers, which would help expedite the matter.

Justice Burke had written in his decision of Nov. 25, 1998:

"In sum, the plaintiffs claim that the entire parcel is public trust property as a matter of law and that no part of it may be leased without the approval of the State Legislature. They also contend that the lease of any green space is unlawful because it is part of 'St. Paul's Community Park.' Plaintiffs also state that even if the buildings could be leased, the open space adjacent to and north of the buildings may not be leased, because those areas have been used as recreational areas since the condemnation and because, (as above noted) Village employees refurbished the children's playground, maintained the area, posted signs and allowed its use for a playground and necessary parking.

"The defendants in their brief claim that no part of the parcel ever acquired park or 'public trust' status by dedication or use which would prevent the alienation of a portion of the parcel absent legislative approval of the lease.

"The Village resolutions and the referendum hereinabove cited state the purpose of the acquisition as being 'Village purposes including recreational purposes,' 'to provide significant green space and to prevent undesirable land use and development.' The petition recites similar purposes. Nothing in the title policy or the agreement with the Cathedral restricts the use of the property."

Justice Burke also stated that "Article VII §1 of the Constitution of the State of New York provides that a municipality cannot permit property acquired by it for a specific purpose to be diverted to a possession or use exclusively private absent an act of the State Legislature" as was determined in Lake George Steamboat Co., Inc. v. Robert M. Blais. He also states that according to Pearlman v. Anderson, Justice Levine of the Supreme Court of Nassau County found that the issue then becomes whether or not the municipality purchased the land for general purposes or specifically for parks.

Justice Levine had stated that even though the Village maintained the property in question as a park and even referred to it as a park in a publication by the Village, it was never officially dedicated as a public park and was acquired under general circumstances. Levine decided that "The Village Trustees are given the power to hold and manage municipal property. This includes determining what use shall be made of it."

Justice Burke summed up his discussion of these other cases, writing, "Ample issues of fact are presented which can only be resolved by a trial."

The trial will likely begin in the fall and depositions are scheduled for June, according to the lawyer for the plaintiff, Village resident Michael Ciaffa.

Many residents at the last Board of Trustees' meeting stated after the meeting that with the case going to trial they are concerned about the expense to the Village in terms of counsel fees and fear that CareMatrix will abandon the plans to lease the building because of the delays. James Kenny, one of the plaintiffs, commented at the meeting, "We are not litigants wasting money and the characterization of the suit as frivilous and a waste of time or a waste of taxpayers' money is wrong as two courts have said." Many residents present argued later that they believe the suit is a delaying tactic to ensure that CareMatrix will pull out. Kenny says he and his colleagues will be beginning a publicity campaign soon to explain the nature and goals of the suit for the community's benefit, so they may understand what it is trying to achieve.