Schwartzberg v. Axelrod

Mahoney, P.

J. Appeal from a judgment of the Supreme Court at Special Term (Cobb, J.), entered June 27, 1984 in Albany County, which, inter alia, dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to enjoin respondents from continuing administrative proceedings with respect to an audit and reduction of revised Medicaid reimbursement rates for the 1975 and 1976 rate periods.

Petitioners operate nursing homes which receive reimbursement pursuant to the Medicaid program. The Department of Health commenced an audit of petitioners in January of 1978 relating to expenses for the 1975 and 1976 rate periods. The audit report was served on petitioners in February of 1983. In June of 1983, petitioners commenced this proceeding seeking to enjoin respondents from pursuing the audit due to delay on the part of the Department. Special Term concluded that the delay was not unreasonable and dismissed the petition.^* Petitioners appealed.

During the pendency of this appeal, the Court of Appeals has ruled, in cases similar to the instant one, that when calculating whether the delay is unreasonable, the relevant time period is from the date a hearing was requested until the date the hearing was scheduled or conducted (Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169). Here, it is apparent that petitioners have not yet requested a hearing. Therefore, there is no authority to enjoin respondents at this point in time from continuing their recoupment proceeding.

Judgment affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.

* Another issue was raised in the petition and was resolved in petitioners’ favor. That issue is not before us.