United Hebrew Geriatric Center v. DeBuono

267 A.D.2d 390, 700 N.Y.S.2d 728, 1999 N.Y. App. Div. LEXIS 13140

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1999
• Status: Published

Opinion

—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 dáys.

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 Liq. Auth., 24 NY2d 174; Matter of Dabulis v New York City Tr. Auth., 222 AD2d 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 in 18 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 Servs., 74 NY2d 404; Bryant v Perales, 161 AD2d 1186). Ritter, J. P., Santucci, Thompson and Joy, JJ., concur.