Posner v. Rockefeller

• Citation: 297 N.Y.S.2d 867,31 A.D.2d 352
• Parties: In the Matter of James M. POSNER et al., Appellants, v. Nelson A. ROCKEFELLER, as Governor of the State of New York, et al., Respondents.
• Decision Date: 10 March 1969
• Court: New York Supreme Court Appellate Division

Page 867

297 N.Y.S.2d 867

31 A.D.2d 352

In the Matter of James M. POSNER et al., Appellants, v. Nelson A. ROCKEFELLER, as Governor of the State of New York et al., Respondents.

Supreme Court, Appellate Division, Third Department.

March 10, 1969.

Kimmelman, Perkiss & Sexter, New York City (Botein, Hays, Sklar & Herzberg, Harry I. Rand, New York City, of counsel), for appellants.

Louis J. Lefkowitz, Atty. Gen. (Ruth K. Toch and Alan W. Rubenstein, Albany, of counsel), for respondents.

Harold Kohn, New York City, for amicus curiae, New York State Optometric Assn., Inc.

Before GIBSON, P.J., and REYNOLDS, HERLIHY, STALEY and GREENBLOTT, JJ.

REYNOLDS, Justice.

This is an appeal from a judgment of the Supreme Court, Albany County, in a proceeding brought pursuant to CPLR article 78, dismissing appellants' petition seeking to compel the respondents to promulgate an optometric fee schedule retroactively to July 1, 1966 on the ground that it failed to state a cause of action (CPLR 7804, subd. (f)).

Following the enactment of Federal and State legislation establishing the 'Medicaid' program the Governor on July 14, 1966 upon the recommendation of an interdepartment task force appointed by the Governor and consisting of members of the Department of Health, Department of Social Welfare, Division of the Budget and other interested agencies, promulgated a maximum medical fee schedule setting forth what was regarded as a fair and reasonable maximum fee for each item of service to be performed by a physician for a patient who qualified for 'Medicaid' benefits. This fee schedule was made retroactive to July 1, 1966. No comparable fee schedule for eye services performed by the appellants was at that time promulgated (it was subsequently promulgated on October 25, 1966) and appellants brought the instant proceeding seeking to require that when promulgated it also would be made retroactive to July 1, 1966 (it was, in fact, not made retroactive but rather prospective to take effect November 1, 1966).

Appellants' position is that a failure to make their fee schedule retroactive as had been done with that of the physicians is violative of the equal protection and due process requirements of the Federal and State constitutions. It is well settled that the guarantee of equal protection is applicable only where classification and discrimination are entirely arbitrary and destitute of reasonable basis. To constitute a denial of equal protection there must be a purposeful and systematic discrimination designed to favor one individual or class over another individual or class with no rational basis for a differentiation between them (Marquez v. Aviles, 1 Cir., 252 F.2d 715, cert. den. 356 U.S. 952, 78 S.Ct. 917, 2 L.Ed.2d 845). The prohibition goes no further than invidious discrimination (Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436; Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485; Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563, rehearing den. 349 U.S. 925, 75 S.Ct. 657, 99 L.Ed.2d 1256; New York Cent. R.R. Co. v. Lefkowitz, 46 Misc.2d 68, 259 N.Y.S.2d 76). Clearly the State may validly distinguish between physicians and non-physicians, and more specifically between ophthalmologists and optometrists (Williamson v. Lee Optical Co., Supra; see, also, Matter of Dickson v. Flynn, 246 App.Div. 341, 286 N.Y.S. 225, affd. 273 N.Y. 72, 6 N.E.2d 102; New Jersey State Bd. of Optometrists v. S. S. Kresge Co., 113 N.J.Law 287, 174 A. 353). In fact, appellants...