Opinion
Submitted October 5, 1999
December 20, 1999
Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Health, dated December 4, 1997, made after a hearing, which declined to review the denial of an application for medical assistance benefits dated March 11, 1994, on the ground that the request for a hearing to review the denial was not made within 60 days.
Hayt, Hayt Landau, Great Neck, N.Y. (Lester E. Ozimkowski of counsel), for petitioner.
Eliot L. Spitzer, Attorney-General, New York, N.Y. (William Toran of counsel), for respondents.
DAVID S. RITTER, J.P., FRED T. SANTUCCI, WILLIAM C. THOMPSON and DANIEL W. JOY, JJ.
DECISION JUDGMENT
ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
Initially, we note that inasmuch as the petition did not raise a question of substantial evidence, the matter was improperly transferred here (see, CPLR 7804[g]). However, in the interest of judicial economy, we elect to retain jurisdiction and determine the issue raised on the merits (see, e.g.,Matter of 125 Bar Corp. v. State Leg. Auth. of State of N.Y., 24 N.Y.2d 174 ; Matter of Dabulis v. New York City Tr. Auth., 222 A.D.2d 433 ).
The record supports the determination of the Commissioner of the New York State Department of Health which declined to review the merits of a denial of medical assistance benefits on the ground that the request for a fair hearing to review the denial was not made within 60 days. Contrary to the petitioner's contention, the notice of denial complied with all of the requirements set forth in Social Services Law § 22 and the regulations set forth in18 NYCRR 358-2.2. Accordingly, the 60-day period was not tolled by a defective notice (cf., Matter of Zellweger v. New York State Dept. of Social Services, 74 N.Y.2d 404 ; Bryant v. Perales, 161 A.D.2d 1186 ).
RITTER, J.P., SANTUCCI, THOMPSON, and JOY, JJ., concur.