Opinion
April 1, 1971
Appeal from the Erie Special Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Gabrielli and Cardamone, JJ. [ 57 Misc.2d 826.]
Judgment unanimously reversed, without costs, and petition dismissed. Memorandum: The judgment should be reversed because the State Commissioner of Social Services, a necessary party, was not joined in the article 78 proceeding below. If this article 78 proceeding be viewed as one in the nature of certiorari to review the State Commissioner's determination, failure to join him in the proceeding below was fatal. His determination was binding on the local public welfare district (Social Services Law, § 366-a, subd. 5) and he is thus the proper respondent (24 Carmody-Wait, New York Practice, 2d, § 145:264). If the proceeding be viewed as one in the nature of mandamus against the local agency to compel payment, it is an unpermitted collateral attack on the determination of the State Commissioner barred by res judicata controlling administrative as well as court proceedings. ( Matter of Evans v. Monaghan, 306 N.Y. 312, 323.) Further, no proper action to annul the determination of the Commissioner having been brought against him within four months, the same is now time-barred (CPLR 217; Matter of Foy v. Schechter, 1 N.Y.2d 604, 612). In view of the local agency's stipulation regarding the reasonableness of the attending physician's bill for services rendered petitioner, it is regrettable that the necessary form was not submitted to the local agency by the physician. Moreover, considering the doctor's statement and affidavit in lieu of the required form, as is permitted, there was still lacking sufficient information to satisfy the mandates of the statute and rule without which the Commissioner may not authorize payment (Social Services Law, § 367-a, subd. 1; 18 NYCRR 360.16, 540.7 [a] [2] [5]). Consequently, were we to reach the merits, the determination here would be no different.