Opinion
June 2, 1998
Petitioner failed to seek a fair hearing challenging the agency's determination, as had been previously done successfully, and thus failed to exhaust available administrative remedies (see, Matter of Stern v. Krauskopf, 110 A.D.2d 536). While exhaustion is not required where further administrative steps would be futile in light of a firm statement of agency policy (see, Lehigh Portland Cement Co. v. New York State Dept. of Envtl. Conservation, 87 N.Y.2d 136, 140-141; Heileman Brewing Co. v. New York State Liq. Auth., 237 A.D.2d 203) or where only an issue of law is involved (see, Apex Air Frgt. v. O'Cleireacain, 210 A.D.2d 7, lv denied 86 N.Y.2d 712; Matter of Herberg v. Perales, 180 A.D.2d 166, 169), here only factual issues are implicated by the provider's allegations.
Concur — Sullivan, J. P., Rosenberger, Rubin and Williams, JJ.