IN RE: DRY HARBOR NURSING HOME et al. (2020)

MEMORANDUM AND ORDER

The facts and regulatory background are set forth in a prior related appeal (Matter of Dry Harbor Nursing Home v. Zucker, 175 A.D.3d 770, 108 N.Y.S.3d 467 [2019]).  Briefly, petitioners are various nursing homes that operate in the state and receive Medicaid funds.  The Nursing Home Quality Pool (hereinafter the Quality Pool) is a program established by the Department of Health (hereinafter DOH) to improve the quality of care for residents housed in certain Medicaid-certified nursing home facilities.  In 2018, DOH promulgated regulations related to the implementation of the Quality Pool (see 10 NYCRR 86–2.42), which were made effective as of January 3, 2018.  In September 2018, petitioners commenced this combined CPLR article 78 proceeding and action for declaratory relief challenging the regulations.  Respondents sought dismissal based upon, among other things, the expiration of the statute of limitations.  In an April 2019 order and judgment, Supreme Court dismissed the petition/complaint as untimely.  Petitioners appeal.  We affirm.

Regarding the first, third, fourth, fifth and sixth causes of action in the petition/complaint, only the third cause of action sought relief pursuant to CPLR article 78.  Nevertheless, even though the other causes of action are styled as constitutional challenges or as seeking declaratory relief, these causes of action essentially challenge the validity of the Quality Pool regulations as arbitrary and capricious.  As such, they are “attacks upon a quasi-legislative act or decision made by an administrative agency that are properly advanced in a CPLR article 78 proceeding” (Matter of Town of Stony Point v. State of N.Y. Dept. of Fin., Off. of Real Prop. Servs., 107 A.D.3d 1217, 1218, 967 N.Y.S.2d 231 [2013] [internal quotation marks and citation omitted];  see Spinney at Pond View, LLC v. Town Bd. of the Town of Schodack, 99 A.D.3d 1088, 1089, 953 N.Y.S.2d 314 [2012];  Matter of Federation of Mental Health Ctrs. v. De Buono, 275 A.D.2d 557, 559, 712 N.Y.S.2d 667 [2000]).  In view of this, these causes of action are subject to a four-month statute of limitations (see Walton v. New York State Dept. of Correctional Servs., 8 N.Y.3d 186, 194, 831 N.Y.S.2d 749, 863 N.E.2d 1001 [2007];  Thrun v. Cuomo, 112 A.D.3d 1038, 1041, 976 N.Y.S.2d 320 [2013], lv denied 22 N.Y.3d 865, 986 N.Y.S.2d 20, 9 N.E.3d 370 [2014]).

That said, these specific claims accrued when the regulations became effective (see Matter of Aufiero v. New York State Div. of Criminal Justice Servs., 173 A.D.3d 1320, 1322, 103 N.Y.S.3d 610 [2019], lv denied 34 N.Y.3d 912 [Mar. 26, 2020] ), which, in this case, was January 3, 2018.  Because petitioners did not commence this proceeding/action until September 2018, these claims are untimely (see CPLR 217[1];  Spinney at Pond View, LLC v Town Bd. of the Town of Schodack, 99 A.D.3d at 1089–1090, 953 N.Y.S.2d 314).  Furthermore, we reject petitioners' contention that a letter issued by DOH in November 2018 pertaining to the regulations tolled the statute of limitations.

Finally, petitioners' second cause of action alleged that the Quality Pool was a tax and that DOH was improperly delegated the power to levy a tax.  Although this claim is timely (see New York Ins. Assn., Inc. v. State of New York, 145 A.D.3d 80, 88–89, 41 N.Y.S.3d 149 [2016], lv denied 29 N.Y.3d 910, 57 N.Y.S.3d 714, 80 N.E.3d 407 [2017] ), for reasons stated in Matter of Dry Harbor Nursing Home v. Zucker, 175 A.D.3d at 772–773, 108 N.Y.S.3d 467, it is without merit.

ORDERED that the order and judgment is affirmed, without costs.

Aarons, J.

Garry, P.J., Lynch, Mulvey and Reynolds Fitzgerald, JJ., concur.