Bronx–Lebanon Hosp. Ctr. v. Daines

• Decision Date: 20 December 2012
• Citation: 2012 N.Y. Slip Op. 08857,101 A.D.3d 1431,956 N.Y.S.2d 660
• Parties: In the Matter of BRONX–LEBANON HOSPITAL CENTER, Appellant, v. Richard F. DAINES, as Commissioner of Health, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1431

956 N.Y.S.2d 660

2012 N.Y. Slip Op. 08857

In the Matter of BRONX–LEBANON HOSPITAL CENTER, Appellant,

v.Richard F. DAINES, as Commissioner of Health, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 20, 2012.

Proskauer Rose, LLP, Washington, D.C. (James F. Segroves, pro hac vice) and Proskauer Rose, LLP, New York City (Edward S. Kornreich of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.

Before: MERCURE, J.P., SPAIN, MALONE JR., STEIN and McCARTHY, JJ.

McCARTHY, J.

Appeal from a judgment of the Supreme Court (Devine, J.), entered August 25, 2011 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

After respondent Department of Health (hereinafter DOH) informed petitioner of certain Medicaid reimbursement rates, petitioner sought an administrative appeal. In a determination letter dated July 13, 2010, DOH denied the appeal. On November 19, 2010, petitioner commenced this proceeding challenging that denial and alleging that petitioner received the determination letter on July 19, 2010. Respondents moved to dismiss ( seeCPLR 7804 [f] ), asserting that petitioner received the letter on July 16, 2010, rendering the proceeding barred by the four-month statute of limitations ( seeCPLR 217[1] ). Supreme Court granted the motion and dismissed the petition as untimely. Petitioner appeals.

Initially, CPLR 7804(f) provides that an objection in point of law in a special proceeding may be raised in the answer or a pre-answer motion to dismiss. Petitioner incorrectly argues that, when considering respondents' pre-answer motion to dismiss, Supreme Court should not have looked beyond the petition itself, and not considered any affidavits or exhibits submitted by respondents. While that may be the rule for a motion to dismiss on the ground of failure to state a cause of action ( see Matter of Albany Law School v. New York State Off. of Mental Retardation & Dev. Disabilities, 81 A.D.3d 145, 148, 915 N.Y.S.2d 747 [2011],mod.19 N.Y.3d 106, 945 N.Y.S.2d 613, 968 N.E.2d 967 [2012] ), courts must generally look beyond the petition to decide a motion to dismiss on other grounds, such as the statute of limitations ( see e.g. Matter of Feldman v. New York State Teachers' Retirement Sys., 14 A.D.3d 769, 770, 788 N.Y.S.2d 230 [2005] ).¹ Here, the court did not err in looking beyond the petition itself and considering respondents' submissions.

The parties agree that this proceeding had to be commenced within four months after DOH's determination became “final and binding upon petitioner” (CPLR 217[1] ), which, in a determination concerning Medicaid reimbursement rates, is deemed to occur “upon the receipt of a determination following an administrative appeal” (Matter of Consolation Nursing Home v. Commissioner of N.Y. State Dept. of Health, 194 A.D.2d 149, 152, 605 N.Y.S.2d 493 [1993],revd. on other grounds85 N.Y.2d 326, 624 N.Y.S.2d 563, 648 N.E.2d 1326 [1995];see New York State Assn. of Counties v. Axelrod, 78 N.Y.2d 158, 165, 573 N.Y.S.2d 25, 577 N.E.2d 16 [1991] ). Thus, the proceeding is untimely if petitioner received DOH's determination letter on July 16, 2010, as respondents allege, but is timely if petitioner received the letter on July 19, 2010, as petitioner alleges. Respondents bear the burden of establishing their statute of limitations defense ( see Matter of Feldman v. New York State Teachers' Retirement Sys., 14 A.D.3d at 770, 788 N.Y.S.2d 230).

In support of their motion, respondents submitted the affidavit of a DOH employee whose duties include preparing notifications for mailing. She averred that the July 13, 2010 letter was sent to petitioner via certified mail, the green card was returned to DOH signed and dated July 16, 2010, and the article number for the letter was checked through the United States Postal Service (hereinafter USPS), which confirmed that the letter was received on July 16, 2010.² A copy of the returned green card shows that it was signed with what appears to be only initials and the printed name of the recipient is not listed (although the card has a line for that information). The date of delivery line is blank, but the card is stamped with a postmark from the Morrisania Station post office in Bronx, New York 10456 that appears to show the date as July 16, 2010. The USPS track and confirm report, printed from the USPS website, lists the status as “ [d]elivered” and states that “Your item was delivered at 3:48 pm on July 16, 2010 in BRONX, N.Y. 10456.”

In response, petitioner submitted the affidavit of its mailroom clerk who is responsible for handling incoming mail. He averred that all incoming mail is processed by the Morrisania post office in Bronx, New York 10456, and the USPS delivers mail to petitioner twice daily, once by 9:15 a.m. and once no later than 2:00 p.m. The mailroom clerk was silent as to whether he signed the green card for the letter.³ The verified petition alleges that petitioner received the letter on July 19, 2010. Petitioner did not submit a copy of the envelope that would presumably have contained a postmark. Petitioner submitted an attorney affirmation stating that petitioner served the petition by return receipt certified mail. The green card for the petition is addressed to an individual at DOH's address in Albany, New York 12237. The card contains a legible signature and the signer's name is printed as well, with “Nov 30, 2010” stamped on the line for date of delivery. The card does not contain a postmark. The USPS track and confirm report for the petition lists the status as “[a]rrival at [u]nit” and states that “Your item arrived at 3:37 am on November 29, 2010 in ALBANY, N.Y. 12288.”

While...