78 CPLR 3001 v. BARBARA GUINN (2026)

The papers filed electronically via NYSCEF numbered 1 - 17, 21, and 37 - 40 ("Petition" or "Motion Sequence No. 1"); and, 23 - 31 and 41 - 44 ("Motion Sequence No. 3") were read and considered herein. Upon such reading and consideration, the Motions are disposed as follows:

BACKGROUND

This is a special proceeding under CPLR Article 78 to compel the New York State Office of Temporary and Disability Assistance ("OTDA") and its Office of Administrative Hearings ("OAH") to provide an expedited Medicaid fair hearing claiming the ordinary timeframe will jeopardize each Petitioner/Parents' child's health or ability to attain, maintain, or regain maximum function. Each Petitioner is the parent of a child with autism. Petitioners claim that each child's medically necessary applied behavioral analysis ("ABA") services were denied or reduced, and each timely requested an expedited fair hearing. Petitioners also seek a declaratory judgment, pursuant to CPLR § 3001,claiming that the Respondents' categorical denial of expedited treatment for requests involving ABA services is unlawful. More specifically, Petitioners allege that Respondents can moot any individual demand for an expedited hearing simply by scheduling a hearing after the fact.

The Petitioners alleges three causes of action and request that the Court grant the following relief: (1) that OTDA's denial of the four requests to expedite fair hearings be deemed arbitrary and capricious pursuant to CPLR § 7803(3); (2) mandate that OTDA categorically grant requests for expedited fair hearings for Medicaid denials of ABA services pursuant to CPLR § 7803(1); and, (3) declare as unlawful OTDA's "categorical denial" of expedited fair hearing requests for Medicaid denials of ABA services pursuant to CPLR § 3001. Respondents now move for an order pursuant to CPLR § 3211(a)(7), dismissing the Petition on the grounds that it fails to state a claim for relief against the Respondents. Petitioners oppose Respondents' Motion.

PARTIES CONTENTIONS

In support of its Motion to Dismiss the Petition, Respondents contend, inter alia, as follows: that Petitioners have not shown that OTDA has a duty to grant expedited fair hearings in all cases involving Medicaid approval of ABA services; instead, the statutes leave the determination of whether or not a case meets the threshold of jeopardizing life, health or function, entirely to OTDA's discretion; that the regulatory framework does not establish a clear legal right to an expedited fair hearing, nor does it require OTDA to perform any ministerial act; rather, the statute empowers OTDA to exercise discretion, inter alia, to determine circumstances where a fair hearing afforded in the normal timeframe "could jeopardize the individual's life, health, or ability to attain, maintain, or regain maximum function" (42 CFR § 431.224[a][1]); and that as such, Petitioners are not entitled to relief in the nature of mandamus compelling OTDA to expedite their fair hearing requests.

Respondents also contend, inter alia, as follows: that OTDA does not categorically deny requests for expedited fair hearings in all cases involving ABA services; in making said contention, Petitioners misquote the unverified and wholly contested statement of an OTDA representative (a Fair Hearings Specialist named Dominique Simoneaux); the Petition itself claims that several requests for expedited fair hearings for ABA services were in fact granted by OTDA; as such, Petitioners are not entitled to declaratory relief pursuant to CPLR § 3001; that Respondents' determination is supported by a rational basis; Petitioners each received a letter explaining that their requests for expedited fair hearings were reviewed and it was determined that they did not meet the threshold for expedition, and as such, the fair hearings would be regularly scheduled.

In opposition to Respondents' Motion to Dismiss, Petitioners contend, inter alia, as follows: that the right to an expedited hearing is a substantive entitlement subject to Article 78 review; for the service denials at issue, the governing deadline is a decision within three working days; where the agency determines that the ordinary timeframe "could jeopardize the individual's life, health or ability to attain, maintain, or regain maximum function," it must expedite (42 C.F.R. § 431.224[a][1]), and must "take final administrative action" no later than three working days, (id. §§ 431.224[a][2], 431.244[f][3], [f][2]); and where, as in Infant B.K.'s case, the enrollee pursued an expedited internal appeal that the plan "resolved within the timeframe for expedited resolution, but reached a decision wholly or partially adverse to the enrollee," the State "must take final administrative action . . . no later than 3 working days after the agency receives . . . the case file and information." (id. § 431.244[f][2][ii]), which is not discretionary — as such, a ministerial command that mandamus will compel.

Petitioners also contend, inter alia, as follows: that Petitioners do not seek judicial review under CPLR § 7803(1), rather Petitioners seek review under CPLR § 7803(3) — historically, mandamus to review — which exists to test discretionary determinations for whether they are arbitrary and capricious or an abuse of discretion; contrary to Respondents' contention, the denial is appealable; as a condition of participating in Medicaid, New York must administer its fair-hearing system in conformity with the governing federal requirements, and those requirements are the measure of the agency's legal obligations; and that an Article 78 court thus imports the federal standard and annuls a determination that violates § 431.224 as "affected by an error of law."

Petitioners further contend, inter alia, as follows: that Respondents' denial of expedition was arbitrary, capricious, and an error of law; that each Petitioner submitted an individualized, signed clinical statement from a Licensed Behavior Analyst addressing the precise jeopardy standard the regulation prescribes and explaining, in concrete clinical terms, how delay would harm the particular child; that Respondents rejected that proof as "insufficient" without conducting any clinical review, identifying any deficiency, or applying any clinical expertise; that the denial of Infant M.P.'s request is dated before the request it purports to deny; the four denials are identical — that OAH "reviewed your request, including any evidence you submitted in support of your request, and found that it is insufficient to warrant an expedited appeals process;" and that OAH's own history reflects an abrupt, across-the-board change: having previously granted expedited hearings for materially indistinguishable ABA requests, at a discernible point OAH began denying every such request, even though the later requests were supported by the same kind of medical evidence and presented the same circumstances as the earlier ones it had granted.

Petitioners also contend, inter alia, as follows: that that the denials rest on a categorical rule stated by OAH's Fair Hearings Specialist, Dominique Simoneaux ("Ms. Simoneaux"), among other things, in a recorded statement, that ABA services don't really fall under the governing standard that asks whether delay would "jeopardize their life, health, or ability to attain, maintain, or regain maximum functioning," "because these are just ABA services," the children are "not facing . . . a life or death situation" — it is "just a matter of waiting out the normal course of scheduling," and that Ms. Simoneaux admitted that there was no medical professional review; that because Respondents have submitted their proof and no triable issue of fact remains, the Court should grant the Petition now; that the denial of expedition also violates a ministerial duty enforceable by mandamus to compel under CPLR § 7803(1); mandamus to compel enforces not only purely ministerial acts but also mandatory duties whose performance is "executed through means that are discretionary; the refusal to exercise discretion is admitted — OAH did not weigh the individualized jeopardy showing Section 431.224 requires and by its own Specialist's account, it applied a categorical rule that ABA requests do not qualify and conducted no clinical review; a self-imposed policy does not transform a mandatory duty into a discretionary one and does not excuse its performance; and in Salem v. Guinn, the court held as a matter of law that Respondent OTDA bears a ministerial duty to conduct fair hearings and issue decisions within the time the regulations command, enforceable by mandamus to compel, because the governing language is "must" and is therefore "mandatory, not discretionary." 248 N.Y.S.3d 869 (Sup. Ct. Albany Cnty. 2025).

Petitioners also contend, inter alia, as follows: that Infant B.K.'s plan resolved the internal appeal on the same day it was submitted — necessarily within any expedited timeframe — and did so adversely to B.K. As such, the State's three-working-day duty attached automatically and has long since been breached. Because that duty involves no exercise of discretion, mandamus lies to compel its performance without the Court resolving any question of clinical judgment (CPLR § 7803(1); Klostermann, 61 NY2d at 540); that the underlying fair hearings may eventually be held does not moot this proceeding since the right Petitioners assert is not a right to a hearing but a right to a hearing in the compressed timeframe Section 431.224 prescribes; notwithstanding, the claims fall within the recognized exception to the mootness doctrine, which permits review where the controversy presents (1) a likelihood of repetition, either between the parties or among other members of the public (here each Petitioner must seek reauthorization approximately every 6 months); (2) a phenomenon typically evading review (here the expedited timeframe is measured in working days, while the ordinary track consumes the entire authorization period, so no denial of expedition could ever be litigated to judgment before the period it concerns has run; and (3) a significant or novel question not previously passed upon (whether a State may categorically withhold from a class of medically necessary services the expedited process federal law commands is a question of consequence that no New York court has resolved); and if the Court does not enter judgment outright, it should at least grant interim relief directing that the four hearings be treated as expedited pending determination.

DISCUSSION

" 'On a motion [to dismiss] pursuant to CPLR 3211 (a) (7) and 7804 (f), only the petition is considered, all of its allegations are deemed true, and the petitioner is accorded the benefit of every possible [favorable] inference' (Matter of Brown v Foster, 73 AD3d 917, 918 [2010]; see Matter of Johnson v County of Orange, 138 AD3d 850, 850-851 [2016]). As relevant here, the petition must set forth factual allegations which, if credited, are 'sufficient to make out a claim that the determination sought to be reviewed was 'made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion' (Matter of Kunik v New York City Dept. of Educ., 142 AD3d 616, 617 [2016], quoting CPLR 7803 [3]; see Matter of Munroe v Ponte, 148 AD3d 1025, 1027 [2017]). Dismissal of the petition is warranted if the petitioner 'fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery' (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]).

Although the factual averments set forth in a petition must be taken as true in the context of a motion pursuant to CPLR 3211 (a) and 7804 (f), no such deference is given to 'the legal conclusions drawn by the pleader nor [its] interpretation of the statutes [or contracts] involved' (Matter of Albany, City of v McMorran, 16 AD2d 1021, 1022 [1962]). Accordingly, 'bare legal conclusion[s]' set forth in a petition, without more, are insufficient to state a valid claim for relief under CPLR article 78 (Matter of Brown v Foster, 73 AD3d at 918; see Myers v Schneiderman, 30 NY3d 1, 11 [2017]; Simkin v Blank, 19 NY3d 46, 52 [2012]; Maas v Cornell Univ., 94 NY2d 87, 91 [1999]; Roberts v Pollack, 92 AD2d 440, 444 [1983]).

In addition to bare legal conclusions, 'factual claims either inherently incredible or flatly contradicted by documentary evidence' are not entitled to any presumption of truth (Roberts v Pollack, 92 AD2d at 444; see Myers v Schneiderman, 30 NY3d at 11; Simkin v Blank, 19 NY3d at 52; Maas v Cornell Univ., 94 NY2d at 91; Garner v China Natural Gas, Inc., 71 AD3d 825, 826 [2010]). Accordingly, '[w]hen evidentiary material outside the pleading's four corners is considered, and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate' (Matter of Kunik v New York City Dept. of Educ., 142 AD3d at 618; see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Matter of Tyson v Town of Ramapo, 165 AD3d 805, 806 [2018])." See, Matter of Levy v SUNY Stony Brook, 185 AD3d 689, 127 N.Y.S.3d 504 (2nd Dept. 2020).

The Court first turns its attention to Petitioners' Second Cause of Action pursuant to CPLR § 7803(1) for a Mandamus to Compel expedited fair-hearings and to render decisions within the timeframes purportedly required by 42 C.F.R. §§ 431.224(a)(1) & (2) and 431.244(f)(2)(3) and 18 NYCRR § 358-3.2(b)(9) &(13).

As to the statutory scheme at issue:

"A state participating in Medicaid must grant 'an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.' 42 U.S.C. § 1396a(a)(3). A federal regulation, titled 'Hearing decisions,' further provides that the state agency 'must take final administrative action ... [o]rdinarily, within 90 days from ... the date the agency receives a request for a fair hearing.' 42 C.F.R. § 431.244(f)(1)(ii). In some situations, such as when the standard 90-day period 'could jeopardize the individual's life, health or ability to attain, maintain, or regain maximum function,' 42 C.F.R. § 431.224(a)(1), the agency must take final administrative action within shorter time frames, such as three or seven working days, depending on the nature of the claim, §§ 431.224(a)(2), 431.244(f)(3).

In New York, a Medicaid applicant who is denied benefits by a local agency may appeal to DOH for a fair hearing to contest the denial. See NY Soc. Serv. Law § 22(1). DOH has, however, delegated its authority to conduct fair hearings to the Office of Temporary and Disability Assistance ('OTDA'). NY Comp. Codes R. & Regs. tit. 18, § 358-2.30(b). But, in accordance with state and federal regulations, DOH remains responsible 'for making final administrative determinations and issuing final decisions,' NY Soc. Serv. Law § 364(2)(h), and for ensuring the fair hearing system's compliance with federal law, see 42 C.F.R. § 431.205" (see, Lisnitzer v. Zucker, 983 F.3d 578, 581[U.S. Ct of Appeals, 2nd Circuit]).

New York enacted its own law pertaining to circumstances warranting expedited fair hearings — 18 NYCRR 358—3.2 (see, Matter of Dickinson v Daines, 68 AD3d 1646, 892 N.Y.S.2d 727 [4th Dept. 2009]), which states in relevant part as follows:

"Priority in scheduling of your hearing and determination will be provided when: . . . (b) your circumstances warrant priority in scheduling and your hearing is being scheduled because you have: . . . (9) urgent need for medical care, services or supplies; . . ." (see 18 NYCRR 358—3.2(9).

'Mandamus is available only ... to enforce a clear legal right where the public official has failed to perform a duty enjoined by law' (New York Civ. Liberties Union v. State of New York, 4 NY3d 175, 184, 791 N.Y.S.2d 507, 824 N.E.2d 947; see CPLR 7803[1] ). '[M]andamus does not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial' (New York Civ. Liberties Union v. State of New York, 4 NY3d at 184, 791 N.Y.S.2d 507, 824 N.E.2d 947; see Willow Woods Manufactured Homeowner's Assn., Inc. v. R & R Mobile Home Park, Inc., 81 AD3d 930, 917 N.Y.S.2d 656; Matter of Altamore v. Barrios—Paoli, 90 NY2d 378, 660 N.Y.S.2d 834, 683 N.E.2d 740; Matter of Guzman v. 188—190 HDFC, 37 AD3d 295, 830 N.Y.S.2d 112)' (see, Matter of Klein v New York State Off. of Temporary & Disability, 84 AD3d 1378, 1380, 924 N.Y.S.2d 521 [2nd Dept. 2011]).

'[T]he remedy of mandamus is available to compel a governmental entity or officer to perform a ministerial duty, but does not lie to compel an act which involves an exercise of judgment or discretion' (Matter of Brusco v. Braun, 84 NY2d 674, 679, 621 N.Y.S.2d 291, 645 N.E.2d 724; see Matter of Town of Riverhead v. County of Suffolk, 237 AD3d 944, 945—946, 233 N.Y.S.3d 559). Thus, mandamus is available only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law (see New York Civ. Liberties Union v. State of New York, 4 NY3d 175, 184, 791 N.Y.S.2d 507, 824 N.E.2d 947; Matter of Town of Riverhead v. County of Suffolk, 237 AD3d at 946, 233 N.Y.S.3d 559). Discretionary acts involve the exercise of reasoned judgment which could typically produce different acceptable results, whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result (see Alliance to End Chickens as Kaporos v. New York City Police Dept., 32 NY3d 1091, 1093, 90 N.Y.S.3d 617, 114 N.E.3d 1070; Matter of Santman v. Satterthwaite, 238 AD3d 1156, 1159, 233 N.Y.S.3d 718). Thus, mandamus may be employed to compel acts that officials are duty-bound to perform (see Matter of Santman v. Satterthwaite, 238 AD3d at 1159, 233 N.Y.S.3d 718; Matter of Gonzalez v. Village of Port Chester, 109 AD3d 614, 615, 970 N.Y.S.2d 600)" (see, Matter of Rye Ridge Park, LLC v Village of Rye Brook, 248 AD3d 926, 927-928, 256 N.Y.S.3d 253 [2nd Dept. 2026]).

Here, the aforesaid statutory framework, which Petitioners' rely upon, does not establish a clear legal right to an expedited fair hearing, nor does it require Defendant OTDA to perform any ministerial act. Rather, the statute empowers Defendant OTDA to exercise discretion, inter alia, to determine circumstances where a fair hearing afforded in the normal timeframe "could jeopardize the individual's life, health, or ability to attain, maintain, or regain maximum function" (see 42 CFR § 431.224[a][1]); or where there is an "urgent need for medical care, services or supplies; . . ." (see 18 NYCRR 358—3.2[9]). As such, Petitioners are not entitled to relief in the nature of mandamus compelling Defendant OTDA to expedite their fair hearing requests, based on a purported clear legal right thereof.

"However, Mandamus is an appropriate remedy to enforce the performance of 'those acts which are mandatory but are executed through means that are discretionary" (Klostermann, 61 NY2d at 539, 475 N.Y.S.2d 247, 463 N.E.2d 588)" (see, Matter of Scanlon v Miller-Williams, 248 AD3d 1748, 1749, 257 N.Y.S.3d 871 [4th Dept. 2026]). Here, Petitioners contend that pursuant to Klostermann, supra, inter alia, Defendant's refusal to exercise discretion by applying a categorical rule that ABA requests do not qualify and conducted no clinical review thereof, does not transform a mandatory duty into a discretionary one and does not excuse its performance. As more fully set forth above, Petitioners allege that Defendant's Fair Hearings Specialist, Ms. Simoneaux, provided Defendant OTDA's purported policy of blanket denials of expedited fair hearings for ABA services cases over the phone, thereby demonstrating Defendant OTDA's refusal to exercise discretion. The purported statement of Ms. Simoneaux, which Petitioners rely upon to support said contention, is generally as follows: that ABA services don't really fall under the governing standard that asks whether delay would "jeopardize their life, health, or ability to attain, maintain, or regain maximum functioning," "because these are just ABA services," the children are "not facing . . . a life or death situation" — it is "just a matter of waiting out the normal course of scheduling."

In response, Defendant OTDA contends, inter alia, as follows: that it does not categorically approve or deny requests for expedited fair hearings; that the Petition fails to present a credible factual basis for said assertion; that the contested statement of Ms. Simoneaux is unverified, misquoted, and patently insufficient to establish that Defendant OTDA categorically denies expedition for all ABA services cases; and that the Petition itself and Petitioner's counsel assert that several requests for expedited fair hearings for ABA services were in fact granted by Defendant OTDA (see NYSCEF Doc. No. 1 ¶ 33; and NYSCEF Doc. No. 3 ¶ 12, respectively).

First, Petitioners failed to include in their Petition or initial supporting papers the purported transcript of the telephone call at issue involving Ms. Simoneaux (NYSCEF Doc. No. 40) or the affirmation of Petitioners' witness, Shlomo Brach (NYSCEF Doc. No. 42 ["Brach Affirmation"]), wherein certain assertions are made related to said telephone call. As such, Respondents were not given a fair opportunity to respond to same in their Cross-Motion. Notwithstanding, based on the foregoing contentions of the parties, an issue of fact exists as to whether Defendant OTDA has a policy of blanket denials of expedited fair hearings for ABA services. Moreover, the Petition and initial supporting papers thereof omit additional statements made by Ms. Simoneaux (which were only revealed in the subsequently disclosed transcript) demonstrating, at the very least, that an issue of fact exists as to whether Ms. Simoneaux conclusively provided a purported policy that Defendant OTDA categorically denies expedition for all ABA services cases. For example, when purportedly asked if "this [is] a unilateral decision for ABA therapy that they don't qualify for expedited requests or is it still evaluated on a case by case basis?", the purported transcript indicates that Ms. Simoneaux's response was as follows: "I'm not sure. I think that's something that one of that they're the attorneys. I think they should speak to that, not me" (see, NYSCEF Doc. No. 40 p. 9).

Accordingly, Respondent's Motion to Dismiss Petitioners' Second Cause of Action is denied. In turn, while the Court, upon a Respondent's Motion to Dismiss, can decide the Petition on the merits, the Court does not adopt Petitioners' contention that the Petition should be decided on the merits at this juncture. As set forth above, a dispute as to the facts exists. Moreover, as more fully set forth above, Respondents would be prejudiced not having the opportunity to respond to the subsequent submission by Petitioners of NYSCEF Doc. Nos. 40 and 42 (see, Matter of Buono v NYC Dept. of Bldgs., 227 AD3d 1062, 1063, 213 N.Y.S.3d 341 [2nd Dept. 2024]). Same is the case as to Petitioners' contention that B.K's case is independent of any jeopardy assessment, as this issue was also first raised in the Brach Affirmation (NYSCEF Doc. No. 42).

The Court turns its attention to Petitioners' First Cause of Action for an order pursuant to CPLR §§ 7803(3) and 7806, annulling the Respondents' determinations denying the Petitioners' requests for expedited treatment of their fair hearings, on the ground that those determinations were arbitrary, capricious, an abuse of discretion, and affected by an error of law.

"In a CPLR article 78 proceeding to review a determination of a governmental entity made without an evidentiary hearing, the standard of review is whether the determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see Matter of Smith v New York City Fire Dept., 239 AD3d 870, 872 [2025]; Matter of Achille v Laveman, 224 AD3d 744, 746 [2024]). 'An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts' (Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]). If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable (see Matter of LL 410 E. 78th St. LLC v Division of Hous. & Community Renewal, 44 NY3d 232, 237 [2025]; Matter of Ward v City of Long Beach, 20 NY3d 1042, 1043 [2013]). Judicial review is limited to whether the determination was arbitrary and capricious or without a rational basis in the administrative record, and once it has been determined that an agency's conclusion has a sound basis in reason, the judicial function is at an end (see Matter of Achille v Laveman, 224 AD3d at 746; Matter of Woodson v Town of Riverhead, 203 AD3d 935, 937 [2022])" (see, Matter of Rye Ridge Park, LLC v Village of Rye Brook, 248 AD3d 926, 928, 256 N.Y.S.3d 253 [2nd Dept. 2026]).

As such, since all of its allegations are deemed true, and Petitioners are accorded the benefit of every possible favorable inference, the Petition sets forth factual allegations sufficient to make out a claim that the determination sought to be reviewed was affected by an error of law or was arbitrary and capricious or an abuse of discretion. Petitioners in their First Cause of Action allege, in part, that the Respondents' determinations denying the Petitioners' requests for expedited treatment of their fair hearings, were affected by an error of law by applying the aforesaid categorical rule, purportedly confirmed by a Fair Hearings Specialist for the Office of Administrative Hearings. More specifically, Petitioners allege that a blanket exclusion of an entire service type is contrary to 42 C.F.R. § 431.224, which requires an individualized determination of whether delay would jeopardize the particular individual, and is an error of law (see, NYSCEF Doc. No. 1 ¶¶ 35 & 36). As to Respondents' Motion to Dismiss said portion of Petitioners' First Cause of Action, same is denied. As set forth above, an issue of fact exists as to whether Respondent OTDA has a policy of blanket denials of expedited fair hearings for ABA services cases.

Petitioners in their First Cause of Action also allege, in part, that the Respondents' determinations denying the Petitioners' requests for expedited treatment of their fair hearings, were arbitrary, capricious and an abuse of discretion. More specifically, Petitioners allege that Respondents rejected detailed, signed clinical statements from licensed behavior analysts as "insufficient" without conducting any individualized clinical review, without applying any identifiable clinical expertise, and without articulating any rational basis for the conclusion, contrary to 42 C.F.R. § 431.224 and 18 NYCRR Part 358 (see, NYSCEF Doc. No. 1 ¶ 35). Petitioners contend that Defendant OTDA issued a standard form denial containing no detail or analysis.

In support of their Motion to Dismiss the aforesaid portion of Petitioners' First Cause of Action, Respondents contend, inter alia, as follows: that Petitioners each received a letter explaining that their requests for expedited fair hearings were reviewed and it was determined that they did not meet the threshold for expedition, and as such, the fair hearings would be regularly scheduled; and that said letters explained that while the application warranted a fair hearing, the facts set forth therein were deemed "insufficient to warrant expedited appeals process" pursuant to CFR § 431.224. Respondents do not dispute that each of the aforesaid letters were virtually identical. Notably, Respondents do not, nor could they contend that said letters indicate what the purported insufficiencies are (see, NYSCEF Doc. Nos. 26-29). Additionally, while Respondents submit the affirmation in support of Annamarie Bevilacqua, Esq., who attests to having personal knowledge of certain facts, inter alia, related to the scheduling of Fair Hearings, she makes no mention as to the purported "[insufficiencies]" of Petitioners' request for expediency and/or any facts specific to each individual Petitioner (see, NYSCEF Doc. No. 25). It is unknown at this juncture what the purported insufficiencies are and, as such, an issue of fact exists as to the rational basis, if any, as to the determinations being challenged (Matter of H.R. v New York State Dept. of Health., 227 AD3d 1208, 212 N.Y.S.3d 456 [3rd Dept. 2024]). Moreover, on the issue of arbitrary and capricious, it appears that Respondents are improperly seeking a merits-based determination of the cause of action related thereto, in the context of a pre-answer motion (see, Matter of Board of Educ. of the Newburgh Enlarged City Sch. Dist. v Public Empl. Relations Bd. of the State of NY, 13 AD3d 1186, 185 N.Y.S.3d 340, 414 [3rd Dept. 2023]). Accordingly, Respondents' Motion to Dismiss said portion of Petitioners' First Cause of Action is also denied.

As set forth above, while the Court, upon a Respondent's Motion to Dismiss, can decide the Petition on the merits, the Court does not adopt Petitioners' contention that the Petition should be decided on the merits at this juncture. Petitioners contend that Ms. Simoneaux admitted that there was no medical professional review, thereby admitting to no rational basis for the denial of expedited hearings. However, as set forth above, the Court addressed Petitioners' subsequent submission of NYSCEF Doc. Nos. 40 and 42, the omission by Petitioners in their initial moving papers of additional statements made by Ms. Simoneaux, and the prejudicial nature of same.

The Court turns its attention to Petitioners' Third Cause of Action pursuant to CPLR § 3001 for a declaratory judgment that the controversy is not rendered moot by the Respondents' scheduling of any individual Petitioner's underlying fair hearing:

' "It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal' (Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 713, 431 N.Y.S.2d 400, 409 N.E.2d 876). Courts are prohibited from rendering advisory opinions and 'an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment' (id. at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876; see Saratoga County Chamber of Commerce v. Pataki, 100 NY2d 801, 810, 766 N.Y.S.2d 654, 798 N.E.2d 1047). . .

'The exception to the mootness doctrine permits judicial review where the case presents a significant issue which is likely to recur and evade review (see Matter of State of New York v. Robert F., 25 NY3d 448, 453 n. 1, 13 N.Y.S.3d 319, 34 N.E.3d 829; City of New York v. Maul, 14 NY3d 499, 507, 903 N.Y.S.2d 304, 929 N.E.2d 366; Wisholek v. Douglas, 97 NY2d 740, 741, 743 N.Y.S.2d 51, 769 N.E.2d 808; C.F. v. New York City Dept. of Health & Mental Hygiene, 191 AD3d 52, 61, 139 N.Y.S.3d 273). The exception to the mootness doctrine requires the existence of three common factors: (1) a likelihood that the issue will repeat, either between the same parties or other members of the public; (2) an issue or phenomenon typically evading appellate review; and (3) a showing of significant or important questions not previously passed upon' (C.F. v. New York City Dept. of Health & Mental Hygiene, 191 AD3d at 61, 139 N.Y.S.3d 273; see Matter of Hearst Corp. v. Clyne, 50 NY2d at 714—715, 431 N.Y.S.2d 400, 409 N.E.2d 876; People ex rel. Rosario v. Superintendent, Fishkill Corr. Facility, 180 AD3d 920, 921, 120 N.Y.S.3d 411)" (Matter of Darcy M. (Gethylee C.), 195 AD3d 719, 145 N.Y.S.3d 389 [2nd Dept. 2021]).

See also Matter of Santman v Satterthwaite, 238 AD3d 1156, 233 N.Y.S.3d 718 (2nd Dept. 2025).

Here, since all of its allegations are deemed true, and Petitioners are accorded the benefit of every possible favorable inference, the Petition herein sufficiently alleges the aforesaid exceptions to the mootness doctrine. More specifically, the Petition alleges that Respondents' categorical practice is capable of repetition yet evading review for the following reasons: (1) it is likely to recur — both as to these petitioners, whose ABA services are authorized in approximately six-month increments and who will again seek expedited hearings upon future denials, and as to other Medicaid-enrolled children throughout the State who are subject to the same practice; (2) it typically evades review, because Respondents can and do schedule the underlying hearing before any court can adjudicate the legality of the expedition denial; and (3) it presents a substantial and novel question — the lawfulness of a categorical exclusion of ABA-based requests from expedited treatment — not previously passed upon (see NYSCEF Doc. No. 1 ¶¶ 41-43).

In support of their Motion to Dismiss, Respondents did not specifically brief and or address Petitioners' Third Cause of Action other than merely contending that the "Petition fails to state a cause of action for which relief may be granted and/or is moot" and citing to its arguments related to Petitioners' First and Second Causes of Action (see NYSCEF Doc. No. 24 ¶ 4 ). Based on the foregoing as well as Respondents' failure to meet its burden on its Motion to Dismiss related to Petitioners' Third Cause of Action, said Motion is denied. As to Petitioners' contention that the Court should rule on the merits of the entire Petition, unlike CPLR article 78 proceedings, a declaratory judgment action is not summary in nature, and the Court does not have before it a summary judgment motion. Notwithstanding, as set forth above, issues of fact exist as to Petitioners' allegations related to Respondents' purported "categorical practice."

In light of the foregoing, it is hereby

ORDERED, that Respondents' Motion to Dismiss the Petition is DENIED; and it is further

ORDERED, that Respondents shall file an Answer, if any, pursuant CPLR § 7804(f); and it is further

ORDERED, that all parties are to appear on November 2, 2026 at 9:15AM for purposes of a status conference. Motion Sequence No. 1, the Petition herein, is administratively adjourned to November 25, 2026.

The foregoing constitutes the Decision & Order of this Court.

Dated: September 18, 2026

New City, New York

E N T E R:

HON. DAVID FRIED, A.J.S.C.

STATE OF NEW YORK

COUNTY OF ROCKLAND

David Fried, J.