Opinion
2001-07206
Argued September 5, 2002.
September 24, 2002.
In a hybrid proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Commissioner of Health of the Department of Health of the State of New York, inter alia, to process the petitioners' pending amended application for the establishment and construction of a nursing home, and an action for a judgment declaring, inter alia, that the Department of Health's moratorium on the processing of pending applications for the establishment and construction of nursing homes is invalid, the appeal is from a judgment of the Supreme Court, Suffolk County (Burke, J.), dated July 16, 2001, which, inter alia, granted the petition, declared, in effect, that the moratorium is invalid, and directed the Commissioner to process the amended application.
Eliot Spitzer, Attorney-General, New York, N.Y. (Marion R. Buchbinder and David Axinn of counsel), for appellant.
Duane Morris Heckscher LLP, New York, N.Y. (Jerome T. Levy of counsel), for respondents.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, STEPHEN G. CRANE, WILLIAM F. MASTRO, JJ.
ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, the proceeding is dismissed on the merits, it is declared that the subject moratorium is valid, and the appellant shall submit the methodology in question to the State Hospital Review and Planning Council on or before the latest date for it to be considered at the December 5, 2002, meeting of the State Hospital Review and Planning Council.
On August 3, 2000, the Department of Health of the State of New York (hereinafter the DOH) announced that there would be a temporary moratorium on the processing of certain nursing home "establishment and construction" applications. After the petitioners were advised that their amended application was subject to the moratorium, they commenced the instant proceeding seeking, inter alia, to invalidate the moratorium, and to compel the appellant, who is the Commissioner of the DOH, to continue processing its amended application. The Supreme Court granted the petition, declared, inter alia, that the appellant acted arbitrarily and capriciously in imposing the moratorium, and directed the appellant to continue processing the amended application.
For the reasons stated in Matter of Urban Strategies v. Novello, 297 A.D.2d 745 (decided herewith), the petition should have been denied, and the proceeding dismissed.
The petitioners' remaining contentions are without merit.
In light of the representations made by the Assistant Solicitor General at oral argument of this appeal, we direct the appellant to submit to the State Hospital Review and Planning Council (hereinafter the SHRPC) the methodology in question, on or before the latest date for it to be considered at the December 5, 2002, meeting of the SHRPC.
FLORIO, J.P., S. MILLER, CRANE and MASTRO, JJ., concur.