Calendar Date: November 16, 2017
Schoeneck & King, PLLC, Albany (Stuart Klein of counsel),
T. Schneiderman, Attorney General, Albany (Jonathan D.
Hitsous of counsel), for respondent.
Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Ceresia, J.), entered
November 3, 2016 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to
CPLR article 78, to review a determination of respondent
denying petitioner's application for contingency funding.
is a not-for-profit corporation located in Brooklyn that
operates community residences for individuals with
developmental disabilities. Respondent is responsible for
licensing community residences and provides "contingency
funding" to service providers. Historically, respondent
reviewed funding applications without imposing a submission
time frame on providers. In September 2009, however,
respondent notified providers that, effective October 21,
2009, contingency funding applications would have to be
submitted within one year after the close of the fiscal year
for which funding was being requested.
transmittal letters dated October 20, 2009, petitioner
submitted separate contingency funding requests for fiscal
years ending June 30, 2006, June 30, 2007 and June 30, 2008.
By letter dated December 8, 2009, respondent acknowledged
"receipt of [petitioner's] October 20, 2009
request" for all three years. In August 2012, respondent
corresponded with petitioner to advise that certain backup
documentation would be needed for review. By email dated
August 16, 2012, petitioner confirmed that the necessary
supporting documentation was available. Several years later,
in October 2015, respondent informed petitioner that its
funding requests were being denied as untimely under the
one-year submission policy, noting that the requests were
received on October 22, 2009. Petitioner commenced this CPLR
article 78 proceeding seeking to annul respondent's
determination as arbitrary and capricious and an abuse of
discretion. Supreme Court dismissed the petition, and
petitioner now appeals.
reverse. The September 2009 policy notification instructed
that, "[i]n order to be considered timely, [respondent]
must receive the application postmarked by the deadline or
receive the request via email or fax by the deadline" -
here, October 21, 2009. During oral argument,
respondent's counsel acknowledged that a letter
postmarked by October 21, 2009 would be deemed timely even if
received after that date - a construction consistent with our
reading of this instruction.
support of its petition, petitioner provided the affidavit of
its Executive Director, Scott Barkin, who asserted that,
"[o]ne day before the effective date of
[respondent's] new rule, [petitioner] submitted" the
subject requests. The subject requests included a transmittal
letter dated October 20, 2009 - all but one of which listed
Barkin as a "cc" - addressed to respondent's
office in the City of Albany. In opposition, respondent
provided the affidavit of John Smith, an Associate
Commissioner, stating that respondent received the subject
requests on October 22, 2009, with copies of each letter time
stamped as received on that date. Neither party provided any
further detail as to either the method used to submit the
October 20, 2009 letter requests or the protocol that
respondent utilized to process and time stamp correspondence.
Considering the correspondence exchange between the parties,
it is evident that this dearth of detail on both sides is a
consequence of the six-year delay in summarily rejecting the
applications as untimely. That said, we recognize that the
policy notification informed providers such as petitioner
that "[i]t will be the provider's responsibility to
confirm successful transmissions. Providers will bear the
risk of postal delays or electronic transmission
view, petitioner met its burden of establishing that the
requests were timely submitted. We first note that
respondent's policy notification does not list hand
delivery as an acceptable "submission vehicle." Nor
is there anything in the record to document that
petitioner's applications were made by email or fax.
Basically, that leaves mailing as an acceptable submission
option; in this regard, we have the October 20, 2009 letter
packets "submitted" from Brooklyn, and respondent
acknowledged "receipt of [petitioner's] October 20,
2009 request, " ultimately time stamped as received in
Albany on October 22, 2009. This sequence necessarily
establishes that petitioner's submissions were postmarked
at least by October 21, 2009 and, thus, were timely. To hold
otherwise is irrational, arbitrary and capricious (see
Matter of Entergy Nuclear Power Mktg., LLC v New York State
Pub. Serv. Commn., 122 A.D.3d 1024, 1026-1027 ).
Accordingly, the petition should be granted.
McCarthy, J.P., Devine, Mulvey and Aarons, JJ., concur.
that the judgment is reversed, on the law, without costs,
petition granted, determination annulled and matter remitted
to respondent for further ...