JIGC Nursing Home Co. v. D'Elia

63 A.D.2d 733, 405 N.Y.S.2d 300, 1978 N.Y. App. Div. LEXIS 11666

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1978
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78, inter alia, to compel the Commissioner of the State Department of Social Services to direct the Nassau and Suffolk Departments of Social Services to pay Medicaid funds to petitioner, petitioner appeals from a judgment of the Supreme Court, Nassau County, dated September 6, 1977, which denied the application and dismissed the petition. Judgment affirmed, without costs or disbursements. The Special Term properly found, regarding the claim against the Suffolk County Department of Social Services, that petitioner had not commenced this proceeding in the nature of mandamus within four months after the date that respondents Kirby and Toia had refused petitioner’s demand. Thus, the dismissal of the petition as against respondent Kirby on the basis of the Statute of Limitations (see CPLR 217) was appropriate. The Special Term also ruled that petitioner had commenced the proceeding within four months after respondent D’Elia had freshly reconsidered petitioner’s demand. The Special Term found that petitioner had made a demand upon respondent Toia to take action regarding Nassau County, and that respondent Toia had neither refused nor granted that demand. The Special Term ruled that petitioner had commenced the proceeding within a reasonable time after the making of its demand. Hence, we reach the merits of that aspect of the proceeding that affects the Nassau County Department of Social Services. An examination of the applicable Federal and State regulations discloses that the petitioner has failed to qualify for reimbursement thereunder (see 45 CFR 250.30 [d] [2] [i]; 18 NYCRR 360.21 [c]; see, also, 18 NYCRR 360.20). Under these circumstances the trial court properly dismissed the petition. Mollen, P. J., Martuscello, Shapiro and Cohalan, JJ., concur.