Blue Care, Inc., Petitioner v. The New York State Department of Health, Respondent (2026)

The following papers numbered 1-2 were read and considered on this Petition pursuant to Civil Practice Law and Rules § 780(3) and (4) and Civil Practice Law and Rules § 3001: (A) an Order declaring Respondent's decision as arbitrary and capricious, and/or an abuse of authority; (B) an Order vacating the vote and/or decision of the State EMS Council on Petitioner's application; (C) an Order granting Petitioner's application, or in the alternative, an Order remanding the matter back to the Regional Emergency Medical Services Council for a new hearing before a new hearing officer; and (D) such other and further relief as the Court deems necessary and proper

PAPERS NUMBERED

Notice of Petition/Petition/Exhibits 1-10 1

Verified Answer and Objections in Point of Law/Exhibits A-M 2

Upon the foregoing papers pursuant to Civil Practice Law and Rules §§ 7803(3) and (4) and Civil Practice Law and Rules § 3001, the Petitioner challenges the determination of the State Emergency Medical Services Council which denied the Petitioner's application for an ambulance service certificate in Rockland County, New York. Petitioner contends that Respondent's decision to deny the issuance of an Ambulance Service Certificate to Petitioner was arbitrary and capricious, an abuse of law and supported by substantial evidence pursuant to Civil Practice Law and Rules §§ 7803(3) and (4).

PROCEDURAL HISTORY

Petitioner applied for an ambulance service certificate for Rockland County, New York, which, according to the record before Hudson Valley Regional Emergency Medical Services Council, was deemed complete on May 6, 2024. See NYSCEF Doc. No. 3; See NYSCEF Doc. No. 4, p. 8, lines 20-21. Subsequent to the submission of the application, on June 18, 2024, a hearing was held before David Menken, a Hearing Officer pursuant to Policy Statement 0606 and Article 30 of the Public Health Law, on behalf of the Hudson Valley Regional Emergency Medical Services Council. See NYSCEF Doc. No. 4.

Hearing Officer Menken issued a written Report and Determination as to Petitioner's application, dated July 8, 2024, which recommended denying Petitioner's application. See NYSCEF Doc. No. 6. According to Petitioner, the application was denied due to its failure to satisfy the burden of proof for the demonstration of public need. Respondent objects to the characterization and directs the Court to the Report and Recommendation of Hearing Officer Menken. See NYSCEF Doc. No. 17, ¶ 13. On July 17, 2024, at a special meeting of the Hudson Valley Regional EMS Council, Petitioner's application was denied by a vote of the members present and the determination -- along with the transcript of the special meeting -- were forwarded to the Branch Chief — Agency Licensure for the New York State Department of Health. See NYSCEF Doc. No. 7.

Petitioner appealed the decision of the Hudson Valley Regional EMS Council on August 12, 2024, to an Administrative Law Judge who issued a Report and Proposed Order dated June 25, 2025, which, according to Petitioner, recommended denying its application due to the failure to establish "need." See NYSCEF Doc. No. 9.

Respondent concedes the Administrative Law Judge recommended denying Petitioner's application but denies that the basis for her denial was merely a lack of establishing "need." See NYSCEF Doc. No. 17, ¶ 14. At the December 10, 2025 meeting of the State Emergency Medical Services Council, the Administrative Law Judge's recommendations were adopted and the Council voted to deny Petitioner's application. See NYSCEF Doc. No. 10.

The Petitioner was informed on January 27, 2026, that the State Emergency Medical Services Council voted to uphold the Hudson Valley Regional Emergency Medical Services Council's decision to deny Petitioner's application for new service. See NYSCEF Doc. No. 11. Petitioner commenced the instant Article 78 proceeding within sixty (60) days of the January 27, 2026, determination, as required by Public Health Law § 3002.

ARGUMENT

Petitioner

Petitioner contends the question before the Court is whether it established a need for ambulance services in Rockland County and whether he Respondent's determination that the Petition failed to prove "need" of services through "quantifiable date" was arbitrary and capricious. Specifically, the Petitioner challenges the requirement that a Petitioner can only establish "need," as it is defined in Department of Health Policy 06-06, through statistics instead of through testimony and written support from affected hospitals and nursing homes.

Petitioner contends that there is no statute, regulation or policy that requires use of statistics as a means of establishing "need." Petitioner notes that neither Public Health Law § 30, 29 NYCRR Part 800 nor Department of Health Policy 06-6 require an applicant to submit statistics from hospitals and nursing homes of the need for additional ambulance services. According to Petitioner, these types of statistics are not required -- as the records that would support these statistics are not maintained by the hospitals and nursing homes. Instead, Petitioner contends that this "need" is determined through anecdotal testimony from representatives of the hospitals and nursing homes, which is sufficient. Also, Petitioner asserts that there is no requirement that statistics are the only method of establishing "need."

The crux of Petitioner's Article 78 application is that Respondent's determination to deny its application due to a failure to satisfy the "need" requirement was arbitrary and capricious. According to Petitioner, by requiring "statistics" to establish a "need" for services, the Respondent has imposed a new unwritten requirement that is inconsistent with already promulgated statutory, regulatory and policy requirements, under which the Petitioner made their application in 2024.

Petitioner asserts that the Hudson Valley Regional Emergency Medical Services Council and Respondent have in essence created a new rule or standard as to "need" for services for which they have provided no notice to applicants and for which the hearing officer and Administrative Law Judge had no authority to create.

Relying on Matter of ACME Bus Corp. v Orange County, the Petitioner contends that when an agency's determination is made based upon a standard that differs or deviates from those set forth in statutes and regulations then that determination is deemed arbitrary and capricious since it lacks a "sound basis for in reason." See 28 NY3d 417, 425 [2016]. As such, the Petitioner argues that the proof they provided at the initial hearing and subsequent admissions through testimony and written support from Rockland County hospitals and nursing homes satisfied the definition of "need" and therefore their application should have been granted.

Respondent

Respondent's first affirmative defense and objection is that in as much as the Petitioner seeks a declaratory judgment pursuant to Civil Practice Law and Rules § 3001, the Petitioner never commenced a declaratory judgment as it never filed and served a summons and complaint.

Respondent asserts that pursuant to Civil Practice Law and Rules § 304(a), in order to commence an action, a summons and complaint or summons and notice must be filed. Further, Respondent contends that, pursuant to New York Times Co. v City of New York, when a hybrid action for declaratory judgment and Article 78 relief is filed, the Petitioner must satisfy the filing for both types of actions — service of a summons and a notice of petition along with a combined petition/complaint. See New York Times Co., 103 AD3d 405, 407 [1st Dept 2013]. Further, Respondent argues that as noted in Korn v Gulotta, the failure to file a summons and complaint to commence a declaratory judgment results in a lack of subject matter jurisdiction requiring dismissal. See Korn, 186 AD2d 195, 198 [2d Dept 1992].

Respondent also asserts, citing Greystone Mgt. Corp. v Conciliation & Appeals Bd. of City of NY, that even if the Petitioner had properly commenced the declaratory judgment action it should nevertheless be dismissed since the Petitioner has adequate remedies available to it under Article 78. See Greystone, 62 NY2d 763 [1984]. Respondent concedes that Petitioner's "wherefore clause," seeks judicial review of a final administrative determination, which is subject to judicial review in an Article 78 proceeding.

The second affirmative defense raised by Respondent is that, upon dismissal of the declaratory judgment action, the remaining Article 78 proceeding should be transferred to the Appellate Division, Second Department pursuant to Civil Practice Law and Rules § 7804(g), since the instant Petition raises issues as to whether Respondent's determination as to petitioner's application was supported by substantial evidence.

Respondent's third affirmative defense is that its determination to deny Petitioner's application for an ambulance license was supported by substantial evidence. In support of its defense, Respondent contends that the testimony before the Hudson Valley Regional Emergency Medical Services Council was insufficient to meet the Petitioner's burden of proof demonstrating the public need for additional ambulance service in Rockland County, New York.

LAW/ANALYSIS

Declaratory Judgment Claim Pursuant to Civil Practice Law and Rules § 3001

The action before the Court is a hybrid Article 78/Declaratory Judgment as the Petitioner seeks relief pursuant to Civil Practice Law and Rules §§ 7803(3) and (4) and Civil Practice Law and Rules § 3001. Pursuant to Civil Practice Law and Rules § 304 (a) "[a]n action is commenced by filing of a summons and complaint or summons with notice" and "[a] special proceeding is commenced by filing a petition[.]"

A petitioner commencing a hybrid action is required "to serve a summons in addition to the notice of petition, and a combined petition/complaint." Matter of New York Times Co. v City of NY Police Dept., 103 AD3d at 407; See 301 East 66th Street Condominium Corp v City of New York, 224 AD3d 423, 426 [1st Dept 2024]. The necessity to file both documents to commence a hybrid Article 78/Declaratory Judgment is because separate procedural rules apply to each type of action. See Lake Street Granite Quarry, Inc v Town/Village of Harrison, 106 AD3d 918, 920 [2d Dept 2013]. "The summons invokes jurisdiction for the declaratory-judgment-action component while the notice of petition performs the same function for the Article 78 aspect of the case." Vincent C. Alexander, Practice Commentaries, C7804:5 Pleadings, In General; Joinder of Claims; "Hybrid" Declaratory Judgment Action-Article 78 Proceeding.

Here, the Petitioner failed to file and serve a summons in addition to the notice petition. Therefore, the instant action for declaratory judgment is jurisdictionally defective and must be dismissed.

Article 78 Claim Pursuant to Civil Practice Law and Rules §§ 7803(3) and (4)

A proceeding under Civil Practice Law and Rules Article 78 must be transferred to the Appellate Division, if it raises the question of whether an administrative determination -- made after a hearing held pursuant to law -- is supported by substantial evidence. See Civil Practice Law and Rules §§ 7803(4) and 7804(g); See also Doran v Town of Babylon, 219 AD3d 832 [2d Dept 2023]; Matter of Sullivan v County of Rockland, 121 AD3d 700, 701 [2d Dept 2014]; See also Halperin v City of New Rochelle, 24 AD3d 768 [2d Dept 2005].

The instant Petition raises such a question. See Matter of Willis v New York State Liq. Auth., 118 AD3d 1013,1013-1014 [2d Dept 2014]. However, prior to the Supreme Court transferring a matter to the Appellate Division pursuant to Civil Practice Law and Rules § 7804(g), the Court must first dispose of all objections that could terminate the proceeding such as "lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue." Matter of Doran v Town of Babylon, 219 AD3d at 834 (quoting Civil Practice Law and Rules § 7804(g)).

Here, because the Petition challenges the sufficiency of the evidence that was the basis of Respondent's administrative determination and the Court has already addressed Respondent's jurisdictional objection as to the procedural deficiencies of the declaratory judgment -- transfer to the Appellate Division, Second Department is appropriate. See Doran v Town of Babylon, 219 AD3d at 832; Matter of Applegate v Heath, 88 AD3d 699, 700 [2d Dept 2011]; Bolt v Village of Freeport, 29 AD3d 592 [2d Dept 2006]. As such, the remaining claim, pursuant to Article 78, is transferred to the Appellate Division, Second Department.

Accordingly, it is hereby

ORDERED that the Declaratory Judgment action pursuant to Civil Practice Law and Rules § 3001 is dismissed consistent with the foregoing Decision; and it is further

ORDERED that the Article 78 action is transferred to the Appellate Division, Second Department pursuant to Civil Practice Law and Rules § 7804(g).

Dated: July 10, 2026

New City, New York

HON. JOHN P. COLLINS, JR., J.S.C.

John P. Collins, Jr., J.