Opinion
320 TP 22-01897
06-30-2023
In the Matter of Robert BAKER, Deceased, Ann Marie Baker, Petitioner, v. Daniel W. TIETZ, as Commissioner of New York State Office of Temporary and Disability Assistance, Mary T. Bassett, as Commissioner of the Department of Health of the State of New York, and Erie County Department of Social Services, Respondents.
MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (ELLEN G. SPENCER OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (BRIAN LUSIGNAN OF COUNSEL), FOR RESPONDENTS DANIEL W. TIETZ, AS COMMISSIONER OF NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, AND MARY T. BASSETT, AS COMMISSIONER OF THE DEPARTMENT OF HEALTH OF THE STATE OF NEW YORK.
MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (ELLEN G. SPENCER OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (BRIAN LUSIGNAN OF COUNSEL), FOR RESPONDENTS DANIEL W. TIETZ, AS COMMISSIONER OF NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, AND MARY T. BASSETT, AS COMMISSIONER OF THE DEPARTMENT OF HEALTH OF THE STATE OF NEW YORK.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the determination is unanimously confirmed without costs and the amended petition is dismissed. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, issued following a fair hearing, that denied as untimely her request for review of the denial of her decedent's application for Medicaid benefits. We confirm that determination.
A request for a fair hearing must be made "within sixty days after the date of the action or failure to act complained of" ( Social Services Law § 22 [4] [a] ; see 18 NYCRR 358-3.5 [b] [1]), and the failure to do so deprives an agency of authority to review any challenge thereto (see Matter of Notman v. New York State Dept. of Health , 162 A.D.3d 1704, 1705, 80 N.Y.S.3d 763 [4th Dept. 2018] ). Here, it is undisputed that decedent's Medicaid application was denied on February 4, 2021, but decedent did not request a fair hearing until June 7, 2021, which was beyond the 60-day limitation period. Contrary to the only explanation for the untimely request offered by petitioner at the fair hearing, the record establishes that the notice of denial properly advised both petitioner, who was designated to receive decedent's Medicaid notices, and decedent's recognized representative, who was processing the application on his behalf, of the deadline and method by which decedent could obtain a fair hearing (see Social Services Law § 22 [12] ; 18 NYCRR 358-3.1 [a]; Matter of Breier v. New York State Dept. of Social Servs. , 168 A.D.3d 933, 934, 92 N.Y.S.3d 119 [2d Dept. 2019] ). Consequently, the determination of the Administrative Law Judge (ALJ) that the Department of Health of the State of New York lacked jurisdiction to review the denial of decedent's Medicaid application because the request for a fair hearing was untimely and no sufficient basis was offered for tolling the limitation period is supported by substantial evidence (see Breier , 168 A.D.3d at 934, 92 N.Y.S.3d 119 ; Matter of Fieldston Lodge Nursing Home v. DeBuono , 261 A.D.2d 543, 544, 690 N.Y.S.2d 606 [2d Dept. 1999] ; see also Notman , 162 A.D.3d at 1704-1705, 80 N.Y.S.3d 763 ). Petitioner's remaining contentions in support of tolling the limitation period were not raised at the fair hearing and are therefore not properly before us because "new contention[s] may not be raised for the first time before the courts in [a CPLR] article 78 proceeding" ( Notman , 162 A.D.3d at 1705, 80 N.Y.S.3d 763 [internal quotation marks omitted]; see Matter of Peckham v. Calogero , 12 N.Y.3d 424, 430, 883 N.Y.S.2d 751, 911 N.E.2d 813 [2009] ), and we have no discretionary authority to review those contentions (see Matter of Onondaga Ctr. for Rehabilitation & Healthcare v. New York State Dept. of Health , 211 A.D.3d 1514, 1516, 180 N.Y.S.3d 415 [4th Dept. 2022] ; see generally Matter of Khan v. New York State Dept. of Health , 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001] ).
Further, the record does not support petitioner's contention that the ALJ deprived her of a fair hearing (see 18 NYCRR 358-5.6 [b] [3]; cf. Matter of Feliz v. Wing , 285 A.D.2d 426, 427, 729 N.Y.S.2d 13 [1st Dept. 2001], lv dismissed 97 N.Y.2d 693, 739 N.Y.S.2d 91, 765 N.E.2d 295 [2002] ).
In light of our conclusion, petitioner's remaining contention is academic.