Gardner v. Lavine

Appellate Division of the Supreme Court of New York

Gardner v. Lavine

41 A.D.2d 1023, 343 N.Y.S.2d 1000, 1973 N.Y. App. Div. LEXIS 4385

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 24, 1973

StatusPublished

This text of 41 A.D.2d 1023 (Gardner v. Lavine) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gardner v. Lavine, 41 A.D.2d 1023, 343 N.Y.S.2d 1000, 1973 N.Y. App. Div. LEXIS 4385 (N.Y. Ct. App. 1973).

Pincite

Opinion

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 he 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). (Review of determination decertifying nursing home, transferred by order of Erie Special Term). Present — Goldman, P. J., Witmer, Moule, Simons and Henry, JJ.

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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 he 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). (Review of determination decertifying nursing home, transferred by order of Erie Special Term). Present — Goldman, P. J., Witmer, Moule, Simons and Henry, JJ.

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Bluebook (online)

41 A.D.2d 1023, 343 N.Y.S.2d 1000, 1973 N.Y. App. Div. LEXIS 4385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-lavine-nyappdiv-1973.