Opinion
June 1, 1973
Appeal from the Onondaga Special Term.
Present — Goldman, P.J., Witmer, Moule, Simons and Henry, JJ.
Decision reserved and matter remitted to respondents for further proceedings in accordance with the following memorandum: In this article 78 proceeding, petitioner, the owner of Delaware Nursing Home, seeks to annul a determination of the Commissioner of the Department of Social Services which decertified the nursing home as a provider of skilled nursing home care under the provisions of title XIX of the Federal Social Security Act ( U.S. Code, tit. 42, § 1396 et seq.), thus rendering her ineligible for further participation in the Medicaid program. Petitioner produced evidence by a qualified expert showing that although her nursing home did not meet the strict requirements of the Life Safety Code, the health and safety of the patients would not be adversely affected by the deficiencies provided certain contemplated alterations and repairs were made. There is no proof in the record as to whether such alterations and repairs have been made. Consequently, on the present record we cannot determine whether respondents' determination is supported by substantial evidence. Therefore the matter must be remitted for further development of the record on the issue of whether petitioner has made the alterations and repairs which her experts testified were necessary in order to make her nursing home safe. (See Matter of Pollock v. Lavine, 41 A.D.2d 352.)