Fahey v. Whalen
| Decision Date | 05 November 1976 |
| Citation | 54 A.D.2d 1097,388 N.Y.S.2d 960 |
| Parties | In the Matter of Thomas M. FAHEY, Appellant, v. Robert WHALEN, Commissioner of NYS Dept. of Health, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Love, Balducci & Scaccia, Dante M. Scaccia, Syracuse, for appellant.
Louis J. Lefkowitz, Atty. Gen., Sidney L. Grossman, Syracuse, for Whalen and Berger.
John B. LaParo, James H. Hughes, Syracuse, for Lascaris.
Before MOULE, J.P., and CARDAMONE, SIMONS, MAHONEY and WITMER, JJ.
Appellant is owner and operator of a nursing home. In 1974 respondent Department of Health conducted an audit of Medicaid payments made to the nursing home in the years 1970 and 1971 pursuant to 10 NYCRR 86.8. Upon completion of the audit it notified appellant of overpayments for those years, totalling $34,988. The notices contained attachments summarizing the disallowed expenses and revised rate computations and advised appellant that he had 30 days to protest the adjustment or submit new data to justify the former rate and that failure to do so would be considered acceptance of the Department's findings (see 10 NYCRR 86.8(d)). No protest was received and the respondent Commissioner of Onondaga County Department of Social Services, acting for the State agencies, undertook to collect the overpayment by making deductions from current payments due to appellant. Appellant brought this Article 78 proceeding seeking to compel the payment of its Medicaid funds for the year 1975 without set-off for any alleged overpayments made in 1970 and 1971. Special Term, apparently with the consent of the parties, decided the matter on the papers and dismissed the petition. It also denied a subsequent application to reargue or renew. The notice of appeal covers only the original judgment (denominated order) dismissing the petition.
The primary contentions of the appellant are that the respondents were without authority to recoup the claimed overpayments by set-off against its 1975 payments, that it has been denied due process by the failure of respondents to conduct a hearing on the rate revision and, in the motion to renew, that respondents have proceeded against the wrong party by recouping from this appellant rather than a former owner of the nursing home.
Appellant can hardly raise an issue of error in computation of the overpayment because of the audit. He did not protest the revision or supply additional data to refute it within the time provided as required by the notice and the regulations (10 NYCRR 86.8(d)), he did not question the computation in the court below and he challenges it here only in a conclusory fashion without any specific assignment of error. Under the circumstances, we decline to consider the point, now raised for the first time on appeal (see Rentways, Inc. v. O'Neill Milk & Cream Co., 308 N.Y. 342, 126 N.E.2d 271). The fact and amount of the State's overpayment for the prior years was established, and respondents had the implied power to recoup...
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