Opinion
May 24, 1973
Appeal from the Erie Special Term.
Present — Goldman, P.J., Witmer, Moule, Simons and Henry, JJ.
Decision reserved and matter remitted for further proceedings in accordance with the following Memorandum: Petitioner, the owner of a nursing home in Buffalo, in this article 78 proceeding, sought to annul a determination of respondents which held that petitioner's nursing home could not be certified for skilled nursing care in accordance with the provisions of title XIX of the Federal Social Security Act, thus rendering her ineligible for further participation in the Medicaid program. Petitioner produced evidence by qualified experts that although her nursing home did not meet strict requirements of the Life Safety Code, the health and safety of her patients would not be adversely affected if certain improvements to her nursing home were made. Since there is no proof that such improvements were in fact made, we cannot determine whether respondents' determination is supported by substantial evidence. The proceeding should be remitted so that proof may be introduced and findings made on this question (see Matter of Pollock v. Lavine, 41 A.D.2d 352).