Concerned Home Care Providers, Inc. v New York State Dept. of Health

Concerned Home Care Providers, Inc. v New York State Dept. of Health 2015 NY Slip Op 09651 Decided on December 30, 2015 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 30, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
HECTOR D. LASALLE, JJ.
2014-07952
(Index No. 15593/13)

[*1]Concerned Home Care Providers, Inc., appellant,

v

New York State Department of Health, et al., respondents.

Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Douglas A. Cooper and Thomas A. Telesca of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu and Matthew W. Grieco of counsel), for respondents.

DECISION & ORDER

In an action for declaratory and injunctive relief, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Pines, J.), dated July 29, 2014, as denied its cross motion for summary judgment on the complaint and granted the defendants' motion for summary judgment dismissing the cause of action for injunctive relief and, in effect, declaring that Executive Order (Cuomo) No. 38 (9 NYCRR 8.38) and 10 NYCRR part 1002 are not unconstitutional, void ab initio, or violative of the separation of powers doctrine.

ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that Executive Order (Cuomo) No. 38 (9 NYCRR 8.38) and 10 NYCRR part 1002 are not unconstitutional, void ab initio, or violative of the separation of powers doctrine.

For the reasons stated in our opinion and order in a companion appeal (see Agencies for Children's Therapy Servs. v New York State Dept. of Health, _____ AD3d _____ [decided herewith]), the Supreme Court properly denied the plaintiff's cross motion for summary judgment on the complaint and properly granted the defendants' motion for summary judgment dismissing the cause of action for injunctive relief and, in effect, declaring that Executive Order (Cuomo) No. 38 (9 NYCRR 8.38) (hereinafter Executive Order No. 38) and 10 NYCRR part 1002 are not unconstitutional, void ab initio, or violative of the separation of powers doctrine.

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that Executive Order No. 38 and 10 NYCRR part 1002 are not unconstitutional, void ab initio, or violative of the separation of powers doctrine (see Lanza v Wagner, 11 NY2d 317, 334).

DILLON, J.P., DICKERSON, ROMAN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court