Opinion
2001-05512
Argued September 5, 2002.
September 24, 2002.
In a hybrid proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Commissioner of the Department of Health of the State of New York to process the petitioner's pending application for the establishment and construction of a nursing home, and an action for a judgment declaring, inter alia, that the Department of Health's moratorium on the processing of pending applications for the establishment and construction of nursing homes is invalid, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Donovan, J.), entered May 10, 2001, which denied the petition and dismissed the proceeding.
Neiman Ginsburg Mairanz, P.C., New York, N.Y. (Marvin Neiman and Theodore T. Mairanz of counsel), for appellant.
Eliot Spitzer, Attorney-General, New York, N.Y. (Marion R. Buchbinder and David Axinn of counsel), for respondents.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, STEPHEN G. CRANE, WILLIAM F. MASTRO, JJ.
ORDERED that the judgment is modified by adding a provision thereto declaring that the subject moratorium is valid; as so modified, the judgment is affirmed, with one bill of costs to the respondents, and the respondents shall submit the methodology in question to the State Hospital Review and Planning Council on or before the latest date for it to be considered at the December 5, 2002, meeting of the State Hospital Review and Planning Council.
Contrary to the petitioner's contention, the Supreme Court correctly upheld the moratorium (see Matter of Urban Strategies v. Novello, 297 A.D.2d 745 [decided herewith]; Sheffield Towers Rehabilitation Health Care Ctr. v. Novello, 293 A.D.2d 182; Matter of Jay Alexander Manor v. Novello, 285 A.D.2d 951), and accordingly properly refused to direct the processing of the petitioner's application. In any event, the remedy of mandamus to compel that act is unavailable, as there is no statute or regulation requiring the respondents to process or approve pending applications within a specific time period (see Matter of Urban Strategies v. Novello, supra; Matter of Jay Alexander Manor v. Novello, supra at 953).
The petitioner's remaining arguments are without merit.
We note that since this is in part a declaratory judgment action, the Supreme Court should have made a declaration in favor of the respondents (see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed, 371 U.S. 74, cert denied 371 U.S. 901).
In light of the representations made by the Assistant Solicitor General at oral argument of this appeal, we direct the respondents to submit to the State Hospital Review and Planning Council (hereinafter the SHRPC) the methodology in question on or before the latest date for it to be considered at the December 5, 2002, meeting of the SHRPC.
FLORIO, J.P., S. MILLER, CRANE and MASTRO, JJ., concur.