Posner v. Rockefeller

CourtNew York Supreme Court Appellate Division
Writing for the CourtREYNOLDS
Citation297 N.Y.S.2d 867,31 A.D.2d 352
PartiesIn 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 Date10 March 1969

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.

Page 868

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.

[31 A.D.2d 353] 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

Page 869

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...

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12 practice notes
  • Marino v. Town of Ramapo
    • United States
    • United States State Supreme Court (New York)
    • July 6, 1971
    ...pattern of discrimination between classes of persons with no rational basis for differentiation (Mtr. of Posner v. Rockefeller, 31 A.D.2d 352, 353, 297 N.Y.S.2d 867, 868, affd. 25 N.Y.2d 720, 307 N.Y.S.2d 224, 255 N.E.2d 563). On the other hand, there is no denial of equal protection if a r......
  • Weber v. Kowalski
    • United States
    • United States State Supreme Court (New York)
    • December 11, 1975
    ...the courts of the Ninth Judicial District without a showing of a systematic pattern of discrimination (Matter of Posner v. Rockefeller, 31 A.D.2d 352, 297 N.Y.S.2d 867, affd. 25 N.Y.2d 720, 307 N.Y.S.2d 224, 255 N.E.2d 563). Classification does not offend the State or Federal Constitutions ......
  • Frolov v. Delo
    • United States
    • United States State Supreme Court (New York)
    • February 20, 1976
    ...pattern of discrimination between classes of persons with no rational basis for differentiation (e.g., Mtr. of Posner v. Rockefeller, 31 A.D.2d 352, 353, 297 N.Y.S.2d 867, 869, affd. 25 N.Y.2d 720, 307 N.Y.S.2d 224, 255 N.E.2d 563). Conversely, there is no denial of equal protection if a re......
  • DeHond v. Nyquist
    • United States
    • United States State Supreme Court (New York)
    • January 29, 1971
    ...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)' (Matter of Posner v. Rockefeller, 31 A.D.2d 352, 353, 297 N.Y.S.2d 867, A legislative enactment which prescribes qualifications for holding public office, like other legislative enactments,......
  • Request a trial to view additional results
12 cases
  • Marino v. Town of Ramapo
    • United States
    • United States State Supreme Court (New York)
    • July 6, 1971
    ...pattern of discrimination between classes of persons with no rational basis for differentiation (Mtr. of Posner v. Rockefeller, 31 A.D.2d 352, 353, 297 N.Y.S.2d 867, 868, affd. 25 N.Y.2d 720, 307 N.Y.S.2d 224, 255 N.E.2d 563). On the other hand, there is no denial of equal protection if a r......
  • Weber v. Kowalski
    • United States
    • United States State Supreme Court (New York)
    • December 11, 1975
    ...the courts of the Ninth Judicial District without a showing of a systematic pattern of discrimination (Matter of Posner v. Rockefeller, 31 A.D.2d 352, 297 N.Y.S.2d 867, affd. 25 N.Y.2d 720, 307 N.Y.S.2d 224, 255 N.E.2d 563). Classification does not offend the State or Federal Constitutions ......
  • Frolov v. Delo
    • United States
    • United States State Supreme Court (New York)
    • February 20, 1976
    ...pattern of discrimination between classes of persons with no rational basis for differentiation (e.g., Mtr. of Posner v. Rockefeller, 31 A.D.2d 352, 353, 297 N.Y.S.2d 867, 869, affd. 25 N.Y.2d 720, 307 N.Y.S.2d 224, 255 N.E.2d 563). Conversely, there is no denial of equal protection if a re......
  • DeHond v. Nyquist
    • United States
    • United States State Supreme Court (New York)
    • January 29, 1971
    ...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)' (Matter of Posner v. Rockefeller, 31 A.D.2d 352, 353, 297 N.Y.S.2d 867, A legislative enactment which prescribes qualifications for holding public office, like other legislative enactments,......
  • Request a trial to view additional results

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