MATTER OF ROMAN CATHOLIC DIOCESE OF ALBANY v. New York State Dep't of Health

66 N.Y.2d 948 (1985)

In the Matter of Roman Catholic Diocese of Albany et al., Respondents, v. New York State Department of Health et al., Appellants, and Upper Hudson Planned Parenthood, Inc., Intervenor-Appellant.

Court of Appeals of the State of New York.

Argued November 13, 1985.

Decided December 17, 1985.

Robert Abrams, Attorney-General (Deborah Bachrach, Robert Hermann, Rosemarie Rhodes, Lawrence S. Kahn and Martha J. Olson of counsel), for New York State Department of Health and another, appellants.

Kenneth J. Connolly for Health Systems Agency of North-eastern New York, Inc., appellant.

Gerald H. Katzman and Miriam M. Netter for intervenor-appellant.

Michael L. Costello, David A. Ruffo, Kevin A. Luibrand and R. Christopher Demph for respondents.

Madeline Kochen for New York Civil Liberties Union and another, amici curiae.

Anne E. Simon and Nadine Taub for American Association of University Women and others, amici curiae.

Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur in memorandum.

*951MEMORANDUM.

The order of the Appellate Division should be reversed, without costs, and the petition dismissed.

We assume, without deciding, that petitioners had standing to bring this proceeding (Association of Contr. Plumbers v Fruchtman, 64 N.Y.2d 808, 810; Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs., 63 N.Y.2d 100, 104; Jainchill v Citibank, 62 N.Y.2d 739, 740). On the merits, however, we agree with Justice Howard A. Levine, the dissenter at the Appellate Division, that only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers constitutes a rule or regulation required by NY Constitution, article IV, § 8 to be filed in the office of the Department of State. We agree also, for the reasons stated by the dissenting Justice (109 AD2d, at p 148), that the 50% guideline employed by the Department of Health in passing on the applications involved in the present proceeding did not constitute and was not applied as such a rule, and in view of that conclusion do not reach the constitutional arguments presented by the intervenor and amici.

Order reversed, etc.