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In re City of New York

Supreme Court of New York, First Department

October 31, 2013

In re City of New York, et al., Petitioners-Respondents,
v.
Contract Dispute Resolution Board of the City of New York, Respondent-Respondent, New York Health Care, Inc., Respondent-Appellant. In re New York Health Care, Inc., Petitioner-Appellant, New York City Human Resources Administration Home Care Services Program, et al., Respondents-Respondents.

Wachtel Masyr & Missry LLP, New York (Sara Spiegelman of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for City of New York and New York City Human Resources Administration/Department of Social Services, respondents.

Peggy Kuo, New York, for Contract Dispute Resolution Board of the City of New York, respondent.

Mazzarelli, J.P., Renwick, DeGrasse, Gische, JJ.

Order and judgment (one paper), Supreme Court, New York County (Paul G. Feinman, J.), entered March 6, 2012, which, insofar as appealed from as limited by the briefs, granted in part an article 78 petition filed by the City of New York and New York City Human Resources Administration/Department of Social Services (collectively, HRA), to the extent of remanding the matter to the Contract Dispute Resolution Board (CDRB) for a complete determination regarding HRA's authority to recoup unspent funds received by appellant pursuant to the Health Care Reform Act (HCRA), and denied a separate article 78 petition filed by appellant seeking, inter alia, to compel CDRB and the Office of the Comptroller of the City of New York (Comptroller) to review HRA's authority to recoup non-HCRA funds unspent by appellant, unanimously affirmed, without costs.

The court properly remanded the matter to CDRB to make a complete and final determination regarding HRA's authority to recoup unspent HCRA funds, on the ground that CDRB's failure to address whether there is any statutory basis for such authority rendered its determination arbitrary and capricious. The remand to review this statutory issue was appropriate notwithstanding that the court found no error in the aspect of CDRB's determination concluding that HRA has no contractual basis to recoup HCRA funds (see Society of N.Y. Hosp. v Axelrod, 163 A.D.2d 142 [1st Dept 1990]).

The court properly declined to compel the Comptroller to review appellant's claims regarding non-HCRA funds, since the notice of claim appellant presented to the Comptroller simply stated that the issue in dispute concerned the HCRA funds, and noted that the amount in dispute is $1, 538, 578, which is the exact amount of HCRA funds in dispute (see Bri-Den Constr. Co., Inc. v New York City School Constr. Auth., 55 A.D.3d 649 [2d Dept 2008]). It should be noted that CDRB properly declined to review this issue for the same reason, pursuant to 9 RCNY § 4-09(e).


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