IN RE: LAKESIDE MANOR HOME FOR ADULTS (2005)

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent State of New York Department of Health dated November 4, 2003, denying the petitioner's application for Quality Incentive Payment Program benefits for the 2002-2003 fiscal year, the appeal is from a judgment of the Supreme Court, Richmond County (Giacobbe, J.), dated May 21, 2004, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, with costs, the petition is reinstated, and the sixth affirmative defense is stricken.

The instant proceeding challenges a determination denying the petitioner's application for Quality Incentive Payment Program (hereinafter QUIP) benefits for the 2002-2003 fiscal year.   The petitioner submitted its application for those benefits on or about May 14, 2003, and the petitioner was notified that the application was denied on November 4, 2003.   The instant proceeding was commenced on or about December 11, 2003.

Prior proceedings between the petitioner and the respondents were commenced on or about November 25, 2002, April 22, 2003, and May 27, 2003, respectively.   At the time the prior proceedings were commenced, the petitioner's application for QUIP benefits for the 2002-2003 fiscal year had not been denied.   If the petitioner had attempted to raise a claim for QUIP benefits for the 2002-2003 fiscal year in those proceedings, the claim would have been dismissed as premature (see Matter of Capote v. Our Lady of Mercy Med. Ctr., 168 A.D.2d 238, 562 N.Y.S.2d 478).

In view of the foregoing, dismissal of the instant proceeding pursuant to CPLR 3211(a)(4) was improper.