McCormick v. Axelrod
| Decision Date | 20 January 1983 |
| Citation | 91 A.D.2d 1144,458 N.Y.S.2d 716 |
| Parties | In the Matter of Louise McCORMICK et al., Appellants, v. David AXELROD, as Commissioner of the New York State Department of Health, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Kalman Finkel, The Legal Aid Soc., New York City (Helaine Barnett, New York City, of counsel), for appellants.
Robert Abrams, Atty. Gen. (Clifford A. Royael, Albany, of counsel), for respondent Axelrod.
Before SWEENEY, J.P., and KANE, MAIN, CASEY and WEISS, JJ.
Appeal from a judgment of the Supreme Court at Special Term, entered December 3, 1982 in Richmond County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, seeking, inter alia, a judgment requiring respondent to petition the court for the appointment of a receiver to operate the Beth Rifka Nursing Home pursuant to section 2810 (subd. 2, par. [a] ) of the Public Health Law.
By an order of the Commissioner of the New York State Department of Health dated November 22, 1982, the operating certificate issued to Beth Rifka, Inc., as operator of the Beth Rifka Nursing Home, was revoked and all patients of the nursing home were directed to be discharged to other facilities by December 1, 1982. The application by Beth Rifka, Inc. to review the revocation of its operating certificate has been decided by this court herewith wherein the revocation was confirmed and the petition dismissed (Matter of Beth Rifka, Inc. v. Axelrod, App.Div., 458 N.Y.S.2d 715 [decided herewith] ). Petitioners in the present proceeding are patients at the Beth Rifka Nursing Home. In their application, petitioners sought, inter alia, a judgment requiring respondent to petition the court for the appointment of a receiver pursuant to section 2810 (subd. 2, par. [a] ) of the Public Health Law. The application was in all respects denied and this appeal ensued. The appeal was transferred to this court by order of the Appellate Division, Second Department, entered December 9, 1982.
Petitioners' sole contention on this appeal concerns the failure of respondent to seek the appointment of a receiver. Consequently, we will concern ourselves solely with this portion of petitioners' application.
Section 2810 (subd. 2, par. [a] ) provides, in pertinent part, that:
[a]s a means of protecting the health, safety and welfare of the patients in a residential health care facility, whenever the commissioner revokes the operating certificate of such a facility he shall apply to the supreme court * * * for an order directing the owner of the land and/or structure on or in which the facility is located to show cause why the commissioner, or his designee, should not be appointed receiver to take charge of the facility.
Petitioners argue that the mandatory language of the statute requires that respondent apply for the appointment of a receiver. We disagree. The use of mandatory language in a statute is of slight importance in determining whether an act is mandatory or directory (Munro v. State of...
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... ... State of New York, 223 N.Y. 208, 214, 119 N.E. 444; Matter of McCormick v. Axelrod, 91 A.D.2d 1144, 458 N.Y.S.2d 716 ). The statute in question was intended to provide a sufficient number of delegates to pass upon the ... ...
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McCormick v. Axelrod
...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 t......
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McCormick v. Axelrod
...1027 460 N.Y.S.2d 1027 58 N.Y.2d 607, 447 N.E.2d 87 McCormick v. Axelrod COURT OF APPEALS OF NEW YORK Feb 17, 1983 458 N.Y.S.2d 716, 91 A.D.2d 1144 MOTION FOR LEAVE TO APPEAL Granted. ...