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In the Matter of City of v. Gladys Carrion

State of New York Supreme Court, Appellate Division Third Judicial Department


December 27, 2012

IN THE MATTER OF CITY OF NEW YORK, APPELLANT,
v.
GLADYS CARRION, AS COMMISSIONER OF CHILDREN AND FAMILY SERVICES, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered July 13, 2011 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

The opinion of the court was delivered by: Malone Jr., J.

MEMORANDUM AND ORDER

Calendar Date: November 13, 2012

Before: Mercure, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ.

Respondent Office of Children and Family Services (hereinafter OCFS) provides services and facilities to children adjudicated as juvenile delinquents or juvenile offenders, the cost of which is borne in equal measure by the state and by the localities from which the children are sent (see Executive Law §§ 502, 504, 529). Each locality -- or social services district -- pays the costs to OCFS on a quarterly basis at a per diem rate determined by OCFS and based upon the actual costs of services provided the prior year (see 9 NYCRR 176.8). OCFS first sets an interim rate that is determined by estimated costs, then later publishes a finalized rate based on actual costs. Once the final rate is established, OCFS either credits or bills each social services district accordingly.

After OCFS published interim 2010 chargeback rates, petitioner -- which comprises one social services district -- commenced this CPLR article 78 proceeding contending that the interim rates are affected by an error of law, arbitrary and capricious and an abuse of discretion because the rates allegedly include costs not authorized by statute, and because the methodology of calculation and the underlying data have not been disclosed. Supreme Court granted respondents' pre-answer motion to dismiss the petition on the ground that the claim is not ripe, and petitioner appeals.

At oral argument on this matter, petitioner conceded that OCFS has now definitively determined the final chargeback rates for 2010. Accordingly, this appeal is moot (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; Matter of Kaye v Whalen, 56 AD2d 111, 115 [1977], affd 44 NY2d 754 [1978]), and does not fall within the exception to the mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d at 714-715).

Mercure, J.P., Lahtinen, Stein and Garry, JJ., concur.

ORDERED that the appeal is dismissed, as moot, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20121227

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