Ferro v. Lavine

• Decision Date: 01 March 1974
• Citation: 359 N.Y.S.2d 1012,79 Misc.2d 431
• Parties: Frank FERRO et al., Plaintiffs, v. Abe LAVINE, in his capacity as Commissioner of the Department of Social Services of the State of New York and the Department of Social Services of the State of New York, Defendants. Application of Judith TEEPLE, Petitioner, For Judgment under Article 78 of the Civil Practice Law and Rules, v. Abe LAVINE, as Commissioner of the New York State Department of Social Services, et al., Respondents. Application of Jeanette RING, Petitioner, For Judgment under Article 78 of the Civil Practice Law and Rules, v. Abe LAVINE, as Commissioner of the New York State Department of Social Services, et al., Respondents. . Supreme Court, Special Term, Chenango County
• Court: New York Supreme Court

Page 1012

359 N.Y.S.2d 1012

79 Misc.2d 431

Frank FERRO et al., Plaintiffs, v. Abe LAVINE, in his capacity as Commissioner of the

Department of Social Services of the State of New

York and the Department of Social

Services of the State of New

York, Defendants.

Application of Judith TEEPLE, Petitioner, For Judgment under

Article 78 of the Civil Practice Law and Rules, v. Abe LAVINE, as Commissioner of the New York State Department

of Social Services, et al., Respondents.

Application of Jeanette RING, Petitioner, For Judgment under

Article 78 of the Civil Practice Law and Rules, v. Abe LAVINE, as Commissioner of the New York State Department

of Social Services, et al., Respondents.

Supreme Court, Broome County.

Supreme Court, Special Term, Chenango County.

March 1, 1974.

Broome Legal Assistant Corp. (Mona R. Nedlik, Binghamton, of counsel), for plaintiffs and petitioners.

Monroe County Legal Assistance Corp., Legal Services--Health and Nutritional Development (Arthur L. Stern, III, Rochester, of counsel), for plaintiffs.

Orleans Legal Aid Bureau, Inc. (Jason Karp, Buffalo, of counsel), for plaintiffs.

Louis J. Lefkowitz, Atty. Gen. of N.Y., Albany (Alan W. Rubenstein, Albany, of counsel), for respondents Lavine and N.Y. State Dept. of Social Services.

Sidney H. Singer, Asst. County Atty., Chenango County, Greene, for respondent, Stanley Kimiecik, as Commissioner of Chenango County Dept. of Social Services.

Thomas B. Oakes, Binghamton, for Carroll A. Smythe, as Commissioner of Broome County Dept. of Social Services.

RICHARD F. KUHNEN, Justice.

This proceeding involves three actions, all of which raise the same questions of law. Plaintiffs are similarly situated; they each receive some form of public assistance pursuant to Article 5, Title 11 (Sec. 363 et seq.) of the Social Services Law which entitles them to payment of certain medical expenses. They now seek authorization for payment for sterilization surgery. In each case the operation is sought not by reason of medical necessity but rather for birth control purposes. Petitioners contend that the law authorizes payment for such surgery when undertaken solely for family planning purposes.

Two of the actions (Ring v. Lavine; Teeple v. Lavine) are brought under Article 78 of the CPLR. Petitioners in those actions gave birth to children and while hospitalized following delivery their attending physicians performed sterilization surgery at the request of petitioners. In each case there existed no medical necessity for the operation.

Petitioners' doctors submitted bills for these operations to the Broome County Department of Social Services on behalf of Mrs. Teeple and to the Chenango County Department of Social Services on behalf of Mrs. Ring. In both instances the payment was denied. A 'fair hearing' was requested and held in both cases. The decision of the Commissioner of the New York State Department of Social Services affirmed the decisions of the Broome and Chenango County Commissioners. Both petitioners now seek in an Article 78 proceeding to annul this determination on the grounds that it is arbitrary, capricious and contrary to law.

Plaintiffs in the action of Ferro, et al. v. Lavine have either had or seek sterilization surgery for the sole purpose of birth control. They are proceeding as a class in this action purporting to represent all other persons similarly situated who desire this type of operation at public expense. They have requested a declaratory judgment to the effect that the policy of defendants Commissioner Lavine and the New York State Department of Social Services is contrary to law and further seek to enjoin the defendants from refusing payment for medical services under the circumstances presented here.

All plaintiffs in Ferro, et al. v. Lavine have requested authorization from their local Social Services Departments to proceed with sterilization surgery. With the exception of plaintiff Snyder, none has requested a 'fair hearing' on the refusal of the Social Services Department to authorize payment for the requested operation. In view of the Commissioner's decision in the 'fair hearings' of petitioners Ring, Teeple and Snyder, the following of this procedure would be futile and defendants have agreed not to press the defense of failure to exhaust administrative remedies.

In opposition to the action for declaratory judgment, defendants assert the affirmative defense of lack of jurisdiction on the part of the Court to grant the requested relief as against the State. There is merit in this contention. The rule is well established that the State as sovereign is immune from suit of any kind except where it has specifically consented thereto by express constitutional or legislative enactment. Psaty v. Duryea, 306 N.Y. 413, 118 N.E.2d 584. There has been no showing by plaintiffs of any consent on the part of the State to be sued for a declaratory judgment. This Court, therefore, has no jurisdiction of the subject matter of this action. Niagara Falls Power Company v. White, 292 N.Y. 472, 55 N.E.2d 742.

The State may be a proper party to a declaratory judgment action where the State is not actually an adverse party to the litigation or where there is no attempt to establish a claim against the State or to demand any affirmative relief therefrom. Glassman v. Glassman, 309 N.Y. 436, 131 N.E.2d 721; Town of Ohio v. State of New York, 264 App.Div. 220, 35 N.Y.S.2d 107. This action, however, does not fall within the narrow confines of these decisions. The State has an obvious financial interest in the case at bar which is adverse to that of plaintiffs and the purpose of this action is to obtain a declaration to the effect that all those who are similarly situated to plaintiffs may assert a claim against the State and are entitled to affirmative relief therefrom. Under such circumstances, a declaratory judgment action against the State cannot be maintained.

Although this action (Ferro, et al. v. Lavine) has been commenced in an improper form, dismissal will not be granted upon that ground. This Court is empowered under CPLR 103 to treat the action as having been brought in the proper form. Plaintiffs have set forth sufficient allegations in their complaint for relief in the nature of mandamus under Article 78 of the CPLR and the Court will consider this action as having been so commenced. Cohen v. Department of Social Services, 37 A.D.2d 626, 323 N.Y.S.2d 603; Board of Education of Cent. H.S. Dist. No. 2 v. Allen, 25 A.D.2d 659, 268 N.Y.S.2d 182. As stated above, there is no necessity for seeking a final determination by way of a 'fair hearing' on the plaintiffs' request because the Commissioner's earlier determinations make it clear that the following of such procedure would be futile.

Petitioners are all eligible to receive medical assistance pursuant to Article 5, Title 11 of the Social Services Law commonly referred to as Medicaid. Under this title 'medical assistance' is defined by Section 365--a(3)(c) to include 'family planning services and supplies for eligible persons of childbearing age . . .' Section 131--e of this statute further provides that local Social Services Commissioners shall require their staffs to advise eligible individuals of the availability of 'family planning services for the prevention of pregnancy', and where such services are requested the section requires that they be provided 'at public expense under the appropriate provisions of this chapter.'

The term 'family planning services' is not defined in the Social Services Law or elsewhere under New York State Law. It is the contention of the petitioners that this term includes the surgery for which they now seek reimbursement and that any attempt to limit the definition of this term so as to exclude this service contravenes the intention of the legislature. Respondents take a more restrictive view of the medical services which the legislature intended to provide pursuant to Sections 131--e and 365--a(3)(c). They have interpreted these provisions as requiring local Social Services Departments to provide payment only for nonsurgical birth control and family planning services.

Presently respondents do allow payment for sterilization operations, but only in cases where the eligible individual meets the medical necessity test of Section 365--a(2) of the Social Services Law. This section permits reimbursement at public expense for the 'cost of care, services and supplies which are necessary to prevent, diagnose, correct or cure conditions in the person that cause acute suffering, endanger life, result in illness or infirmity, interfere with his...