Dental Soc. of State v. Carey

• Decision Date: 10 March 1983
• Citation: 461 N.Y.S.2d 77,92 A.D.2d 263
• Parties: , 1 Soc.Sec.Rep.Ser. 1058 In the Matter of the DENTAL SOCIETY OF the STATE of New York, Appellant, v. Hugh CAREY, as Governor of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 77

461 N.Y.S.2d 77

92 A.D.2d 263, 1 Soc.Sec.Rep.Ser. 1058

In the Matter of the DENTAL SOCIETY OF the STATE of New York, Appellant, v. Hugh CAREY, as Governor of the State of New York, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

March 10, 1983.

Power & Monat, New York City (Lawrence M. Monat, New York City, of counsel), for appellant.

Robert Abrams, Atty. Gen., Albany (William J. Kogan, Asst. Atty. Gen., New York City, of counsel), for respondents.

Before MAHONEY, P.J., and SWEENEY, MAIN, MIKOLL and YESAWICH, JJ.

SWEENEY, Justice.

This is an article 78 proceeding brought by petitioner seeking a judgment mandating respondents to upwardly revise the Medicaid dental fee reimbursement schedule. Petitioner is a not-for-profit corporation and the official State-wide professional association for licensed dentists. Petitioner alleges that pursuant to subchapter XIX of the Social Security Act (U.S.Code, tit. 42, § 1396 et seq.), respondents established a maximum dental fee reimbursement schedule in 1966 which was subsequently revised downward in 1969 by 20% and upward in 1974 by 25% and has remained at this 1974 level. Petitioner, in this proceeding, contends that the schedule is inadequate and should be increased. Respondents, prior to answering, moved to dismiss the proceeding on the grounds that petitioner lacks standing to bring the proceeding; that petitioner fails to state a cause of action; and that petitioner is not entitled to the relief sought. Special Term dismissed the proceeding on the ground, not urged by respondents, that the matter complained of is the exclusive responsibility of the Legislature. This appeal ensued.

Initially, petitioner contends that it was error for Special Term to dismiss the proceeding on a ground not raised by respondents when no answer had been filed. Concededly, the petition was dismissed on a ground not raised in the notice of motion or its supporting papers. While there is authority that a court has discretionary power to consider a motion to dismiss on grounds not raised in the motion papers (see Arce v. Sybron Corp., 82 A.D.2d 308, 441 N.Y.S.2d 498), a dismissal on such grounds should not be sustained where a party is prejudiced by his inability to respond to the ground considered sua sponte by the court. Here, petitioner was clearly prejudiced by its inability to respond to Special Term's reasoning in support of the dismissal and there must be a reversal. In the interests of judicial economy, however, we will consider the issues raised and not passed upon by Special Term.

Considering the issue of standing, we are of the view that petitioner does have standing. Petitioner represents approximately 90% of the licensed dentists of the State of New York. The Legislature has declared medical assistance for the needy to be a matter of public concern. The provision of dental services is optional under the Medicaid program (U.S.Code, tit. 42, § 1396d, subd. [a], par. [10] ) and the State has opted to participate in the program of providi dental services. The program, to be efficacious, must be sufficiently attractive to enlist providers so that services are available to the needy. It follows, therefore, that if the rates are not adequate, services will not be provided, thus both the provider and the recipients would be adversely affected. While we find no New York cases precisely in point on the issue of standing, there is ample...