Levine v. Whalen

56 A.D.2d 691, 391 N.Y.S.2d 739, 1977 N.Y. App. Div. LEXIS 10847

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 1977
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered March 31, 1976 in Albany County, which granted petitioner’s motion for taxation of costs against appellant Robert P. Whalen as Commissioner of Health of the State of New York. The order granted costs of right in the amount of $4,383.20 and a discretionary allowance pursuant to CPLR 8303 (subd [a], par 2) in the amount of $1,000 for a total of $5,383.20. The instant proceeding involved a determination by the appellant Commissioner of Health made after a hearing which revoked respondent’s nursing home operating certificate pursuant to article 28 of the Public Health Law. Following appellant’s determination, we reversed, finding that the applicable statute (Public Health Law, §2800) constituted an improper delegation of legislative authority insofar as it allowed appellant to set structural safety standards for nursing homes. This court also granted costs to the petitioner. The order herein appealed from followed. Thereafter the Court of Appeals modified our decision, upheld the validity of the Public Health Law but affirmed our finding that the regulations were invalid and that the determination should be annulled. The Court of Appeals also granted costs to respondent (Matter of Levine v Whalen, 50 AD2d 503, mod 39 NY2d 510). We find no merit in appellant’s contention that Special Term lacked jurisdiction to enter the order appealed from. Furthermore, the additional allowance granted to respondent pursuant to CPLR 8303 (subd [a], par 2) was a proper exercise of the court’s discretion. Order affirmed, with costs. Koreman, P. J., Greenblott, Kane, Mahoney and Herlihy, JJ., concur.