Opinion
November 1, 1973
Judgment, Supreme Court, New York County, entered June 7, 1973, dismissing the proceeding, unanimously modified, on the law and the facts, without costs and without disbursements, to the extent of remanding the matter to the respondents to answer the petition and for the proceeding to continue. On the preliminary issue of the proposed intervention, the question of whether there is a final order aside (CPLR 5701, subd. [b], par. 1; Matter of O'Neill v. Schechter, 12 A.D.2d 760), leave to appeal is granted, and on such appeal the determination denying intervention is unanimously affirmed, without costs and without disbursements. The interests of the proposed intervenors are adequately represented. (Cf. Hidley v. Rockefeller, 28 N.Y.2d 439. ) The petitioner New York City Health and Hospitals Corporation whose existence derives from chapter 1016 of the Laws of 1969, alleges that since its operations commenced on July 1, 1970, the city has failed to meet various monetary obligations, to wit, including a tax levy obligation, Medicaid reimbursement, and further has delayed making payments upon claim presentation. The proceeding in the nature of mandamus under CPLR article 78 was dismissed on the ground that there was no failure to perform as required by law and merely a controversy as to the meaning and interpretation of the legislation. We believe that the matter should be remanded to Trial Term for the ultimate resolution of the dispute, and that pursuant to CPLR 7804 (subd. [f]) respondent be permitted to answer the petition and to assert the defense of legal insufficiency as to the claims advanced.
Concur — Markewich, J.P., Nunez, Kupferman, Lane and Tilzer, JJ.