Opinion
2014-01-21
In the Matter of NEW SURFSIDE NURSING HOME, LLC, et al., Appellants, v. Richard F. DAINES, etc., et al., Respondents.
Hamburger, Maxon, Yaffe, Knauer & McNally, LLP, Melville (David N. Yaffe of counsel), for appellants. Eric T. Schneiderman, Attorney General, New York City (Mark H. Shawhan of counsel), for respondents.
Hamburger, Maxon, Yaffe, Knauer & McNally, LLP, Melville (David N. Yaffe of counsel), for appellants. Eric T. Schneiderman, Attorney General, New York City (Mark H. Shawhan of counsel), for respondents.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs, and the certified question not answered as unnecessary. Petitioners' challenges to the audit results are untimely, as this hybrid CPLR article 78 proceeding/declaratory judgment action was not commenced within four months after petitioners' receipt of the audit results ( seeCPLR 217[1]; Matter of Terrace HealthCare Ctr., Inc. v. Novello, 54 A.D.3d 643, 643, 865 N.Y.S.2d 37 [1st Dept.2008], lv. denied12 N.Y.3d 712, 882 N.Y.S.2d 398, 909 N.E.2d 1236 [2009];Concourse Rehabilitation & Nursing Ctr., Inc. v. Novello, 45 A.D.3d 366, 367, 846 N.Y.S.2d 25 [1st Dept.2007] ). The authority cited by petitioners and relied upon by the dissent, including New York State Assn. of Counties v. Axelrod, 78 N.Y.2d 158, 165, 573 N.Y.S.2d 25, 577 N.E.2d 16 (1991), did not involve the circumstances presented here, where audit results were issued to particular nursing facilities, which they knew would reduce their reimbursement rates, and where an article 78 proceeding could have been commenced to challenge those audit results. Chief Judge LIPPMAN and Judges GRAFFEO, READ, SMITH, PIGOTT, RIVERA and ABDUS–SALAAM concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered upon the ground that it is unnecessary, in a memorandum.