Buffalo General Hospital v. Sipprell

• Decision Date: 15 January 1970
• Citation: 33 A.D.2d 977,307 N.Y.S.2d 407
• Parties: Application of The BUFFALO GENERAL HOSPITAL, Respondent-Appellant v. George G. SIPPRELL, Commissioner of Social Welfare, Erie County, Appellant-Respondent, and The Bristol Home, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 407

307 N.Y.S.2d 407

33 A.D.2d 977

Application of The BUFFALO GENERAL HOSPITAL, Respondent-Appellant v. George G. SIPPRELL, Commissioner of Social Welfare, Erie County, Appellant-Respondent, and The Bristol Home, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Jan. 15, 1970.

George M. Nelson, Buffalo, Charles J. Verbanic, Lackawanna, for appellant-respondent Sipprell.

Magavern, Magavern, Lowe & Beilewech, Michael Beilewech, Jr., Buffalo, for respondent-appellant Buffalo General Hospital.

Moot, Sprague, Marcy, Landy & Fernbach, Charles E. Milch, Buffalo, for respondent Bristol Home.

Before MARSH, J.P., and WITMER, MOULE and HENRY, JJ.

MEMORANDUM:

Although an Article 78 proceeding is not the proper method for the Buffalo General Hospital (the Hospital) to enforce an alleged contract right against The Bristol Home, Inc. (the Home), the latter interposed an answer and defended the proceeding as an action and first raised the question of the propriety of the proceeding on the oral argument before us. Under such circumstances we treat the proceeding against the Home as an action for declaratory judgment (see CPLR 103(c); Matter of Lakeland Water District v. Onondaga County Water Authority, 29 A.D.2d 1042, 289 N.Y.S.2d 875; Matter of Mandis v. Gorski, 24 A.D.2d 181, 265 N.Y.S.2d 210).

We deem the notice by the Home to the Commissioner of Social Welfare that Miss Spencer had been placed in the Hospital nine days before and requesting the Commissioner to pay her hospital expenses, substantial compliance with the notice requirement of section 367 of the Social Services Law as it existed prior to its amendment effective June 22, 1968 (see Matter of Amsterdam City Hospital v. Hoffman, 278 App.Div. 292, 104 N.Y.S.2d 348, relying upon Matter of St. Joseph's Hospital v. Hillman, 270 App.Div. 972, 62 N.Y.S.2d 120, affd. 297 N.Y. 502, 74 N.E.2d 196). The similar notice and request later made by the Hospital to the Commissioner and the subsequent written exchanges between them show that the Commissioner has not been prejudiced by delayed notice. Social Services Law, section 366--a subd. 4, however, provides that where application such as that made in behalf of Miss Spencer is denied, the applicant may appeal to the department which shall review the case and give the applicant an opportunity for a fair hearing thereon. After the Commissioner denied this application no administrative appeal was taken as provided in the statute. Application for such review is a condition precedent to resort to the courts in an Article 78 proceedin...