The opinion of the court was delivered by: BURKE
Pending before this court is the motion by Monroe County Legal Assistance Corporation for an award of attorneys fees against defendants Blum, Whalen and Russo pursuant to 42 U.S.C. § 1988. Also pending is the cross-motion by defendants Blum, Whalen and Russo that such motion be denied or, in the alternative, that any such award be made against defendants Beechwood and Califano only. These motions arise out of the action of the same title that was settled by stipulation approved and filed by the court on May 8, 1979.
Plaintiffs commenced this action in New York State Supreme Court, naming defendants Blum and Russo only, to compel continued Medicaid support for plaintiffs at Beechwood Nursing Home. Plaintiffs, alleging that the state agency sought to transfer them without regard to their well-being in contravention of their Fourteenth Amendment rights, obtained a series of preliminary injunctions against their transfer and against even the discussion of transfer with plaintiffs.
Prior to this action, defendant Blum issued a decision after fair hearing (amended complaint, Exhibit A), that under such circumstances as presented herein, plaintiffs would not be compelled to be transferred, but that the state agency would not be compelled to reimburse Beechwood, due to the nursing home's refusal to sign a provider agreement as required by federal regulations.
Defendants Blum and Russo answered, alleging inter alia that all required efforts had been made to assure plaintiffs well-being (answer of defendant Blum, paragraph 7). These defendants also caused the court to join defendants Whalen, Beechwood and Califano.
The action was thereupon removed to this court upon the petition for removal filed by defendant Califano. Defendant Califano then moved to dismiss for lack of jurisdiction. This motion was argued and submitted, but not decided due to the intervening settlement of this action.
Defendants Blum, Whalen and Russo appealed from this court's grant of a preliminary injunction and class certification. This was a substantial, not frivolous, appeal filed in the Court of Appeals on or about March 13, 1979, that was withdrawn only due to mootness following settlement.
Defendants Blum and Whalen had sought plaintiffs' transfer due only to Beechwood's refusal to sign a provider agreement. This refusal would cause defendant Califano to withhold or recoup H.E.W.'s fifty percent contribution toward plaintiffs' care. State law (Social Services Law § 363, et seq.) requires such administration of medicaid.
The state defendants filed a cross-claim against H.E.W. seeking H.E.W.'s contribution towards plaintiffs' care despite the lack of a provider agreement. At no time have the state defendants had any reason or intent to transfer plaintiffs independent of federal regulations that effectively compel plaintiffs' transfer.
Beechwood filed a cross-claim against the state and county defendants, alleging that the medicaid reimbursement rate established by the state defendants was illegal. Beechwood's pleadings made no reference to administrative appeals.
Settlement negotiations began on or about March 7, 1979, between the federal, state and county defendants and Beechwood. Plaintiffs' nominal involvement in these negotiations did not begin until at least April 12, 1979 (DeWaal's affidavit sworn to July 23, 1979, paragraph 24).
The settlement that was reached essentially provides as follows:
(a) Beechwood would sign a provider agreement (paragraph 1);
(b) the State Department of Health would expedite certain administrative appeals brought by Beechwood and then pending; that Beechwood would receive monies due; and that H.E.W. would not recoup these monies from the state (paragraphs 2 through 6);
(c) plaintiffs' attorneys, Monroe County Legal Assistance Corporation, reserves any existing right to move for an award of reasonable attorneys' fees. No other party concedes ...