Matter of County of Schuyler v Zucker

Matter of County of Schuyler v Zucker 2016 NY Slip Op 00564 Decided on January 28, 2016 Appellate Division, Third 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 and Entered: January 28, 2016
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[*1]In the Matter of COUNTY OF SCHUYLER, Respondent,

v

HOWARD A. ZUCKER, as Commissioner of Health, et al., Appellants.

Calendar Date: November 19, 2015
Before: Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for appellants.

Whiteman Osterman & Hanna, LLP, Albany (Robert S. Rosborough IV of counsel) and Nancy R. Stormer, Utica, for respondent.

Lahtinen, J.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (O'Shea, J.), entered October 3, 2014 in Schuyler County, which, among other things, partially granted petitioner's application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to, among other things, annul a determination of respondent Department of Health denying petitioner's claims for certain Medicaid reimbursements.

Our recent cases are dispositive of the issues on appeal in this case involving Medicaid reimbursement for pre-2006

overburden expenses. We agree with Supreme Court's conclusions that petitioner is entitled to such reimbursement, albeit for a different reason; that is, because petitioner submitted its claims within the six-month grace period (see Matter of County of St. Lawrence v Shah, 124 AD3d 88, 92-93 [2014], lv granted 25 NY3d 903 [2015]; see also Matter of County of Broome v Shah, 130 AD3d 1347, 1347 [2015]; Matter of County of Chemung v Shah, 124 AD3d 963, 964 [2015], lv granted 25 NY3d 903 [2015]). "[R]espondent's challenge to petitioner's capacity to bring this claim was waived by respondents' failure to raise capacity as a defense in their answer or a pre-answer motion to dismiss" (Matter of County of Chemung v Shah, 124 AD3d at 964; see Matter of County of Broome v Shah, 130 AD3d at 1347-1348). Contrary to respondent's argument, mandamus relief was properly granted (see Matter of County of St. Lawrence v Shah, 124 AD3d [*2]at 94; Matter of County of Broome v Shah, 130 AD3d at 1347).

Peters, P.J., Garry, Rose and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.