McCormick v. Axelrod

• Citation: 466 N.Y.S.2d 277,59 N.Y.2d 568,453 N.E.2d 506
• Parties: , 453 N.E.2d 506 In the Matter of Louis McCORMICK et al., Appellants, v. David AXELROD, as Commissioner of the New York State Department of Health, et al., Respondents.
• Decision Date: 07 July 1983
• Court: New York Court of Appeals

Page 277

466 N.Y.S.2d 277

59 N.Y.2d 568, 453 N.E.2d 506

In the Matter of Louis McCORMICK et al., Appellants, v. David AXELROD, as Commissioner of the New York State Department of Health, et al., Respondents.

Court of Appeals of New York.

July 7, 1983.

[59 N.Y.2d 569] Helaine Barnett and Kalman Finkel, New York City, for appellants.

[59 N.Y.2d 570] Robert Abrams, Atty. Gen., Albany (Clifford A. Royael and Peter H. Schiff, Asst. [453 N.E.2d 507] Atty. Gen., Albany, of counsel), for David Axelrod, respondent.

Irwin R. Karassik, New York City, for Beth Rifka, respondent.

OPINION OF THE COURT

PER CURIAM.

On November 22, 1982, following a hearing, respondent New York State Commissioner of Health issued an order revoking the operating certificate of Beth Rifka, Inc., as operator of the Beth Rifka Nursing Home on Staten Island, citing numerous health and safety violations. Although that order directed that all patients be discharged from Beth Rifka by December 1, 1982 and placed in alternate facilities, it left the operator itself responsible for effecting the discharge and for operating the facility until that time. Petitioners, residents of Beth Rifka Nursing Home, instituted this article 78 proceeding seeking, inter alia, an order directing respondent to appoint a receiver pursuant to section 2810 (subd. 2, par. a) of the Public Health Law to oversee operation of the facility pending completion of the discharge. Special Term denied the application. On appeal the Appellate Division, 91 A.D.2d 1144, 458 N.Y.S.2d 716, affirmed, holding that the commissioner possesses discretion to determine whether or not to apply for appointment of a receiver and that insofar as section 2810 (subd. 2, par. a) provides that the commissioner shall apply to Supreme Court for appointment of a receiver upon revocation of a facility's operating certificate, the statute is directory and not mandatory. ^*

Despite the fact that this proceeding is moot because all patients residing in Beth Rifka Nursing Home have been discharged and transferred, the issue is reviewable. The interpretation given the statute potentially affects the health and safety of numerous nursing home patients, and, when a predictably similar situation arises, the need for prompt remedial action would likely deprive this court of an opportunity for meaningful review (see Matter of Storar, 52 N.Y.2d 363, 369-370, 438 N.Y.S.2d 266, 420 N.E.2d 64; Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876). With recognized exceptions to the mootness doctrine manifestly applicable, we treat the instant proceeding as one seeking declaratory relief and reach the issue of statutory construction.

At the time of its enactment in 1975, section 2810 (subd. 2, par. a) of the Public Health Law provided in part that the commissioner, upon ordering the revocation of a facility's operating certificate, "may apply" to the Supreme Court for the appointment of a receiver (L.1975, ch. 649). Only two years later, section 2810 was amended and the word "shall" apply was substituted in place of may (L.1977, ch. 896, § 2). The change evinced an unmistakable legislative intent to require the commissioner to submit the matter to the court for its determination and control (McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 171, p. 334; 2A Sutherland, Statutory Construction [4th ed., Sands], § 57.05). Moreover, it is noteworthy that a segment of the Moreland Report issued in 1976, a year before the amendment, pointed to serious deficiencies in the "large-scale transfer of patients" (Sixth Report of New York State Moreland Act Commission on Nursing Homes and Residential Facilities,...