NAZARETH HOME OF FRANCISCAN SISTERS v. NOVELLO

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of NAZARETH HOME OF the FRANCISCAN SISTERS, et al., Petitioners-Appellants, v. Antonia C. NOVELLO, M.D., Commissioner of Health of State of New York, and Carole E. Stone, as Director of Budget of State of New York, or Their Successors, Respondents-Respondents.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, SMITH, AND LAWTON, JJ. Harter, Secrest & Emery LLP, Rochester (Thomas G. Smith of Counsel), for Petitioners-Appellants. Eliot Spitzer, Attorney General, Albany (Victor Paladino of Counsel), for Respondents-Respondents.

 Petitioners, 62 nursing homes in western New York, commenced this CPLR article 78 proceeding alleging, inter alia, that the methodology by which Medicaid reimbursement rates are set is arbitrary and capricious.   We affirm the judgment for reasons stated in the decision at Supreme Court.   We add only that petitioners lack standing with respect to their “second claim for relief,” i.e., that respondents are failing to provide adequate care to “the elderly, needy and disabled New Yorkers who reside in the nursing facilities operated by [petitioners],” in violation of N.Y. Constitution article XVII. “The standing of an organization ․ to maintain an action on behalf of its members requires that some or all of the members themselves have standing to sue, for standing which does not otherwise exist cannot be supplied by the mere multiplication of potential [petitioners]” (Matter of Dental Socy. of State of N.Y. v. Carey, 61 N.Y.2d 330, 333, 474 N.Y.S.2d 262, 462 N.E.2d 362), and here it cannot be said that the Medicaid recipients are members of petitioners' nursing homes.   Thus, petitioners do not fall within the requisite “ ‘zone of interests' ” sought to be protected by article XVII of the N.Y. Constitution and thus lack standing to assert the violation of that article (Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 573 N.E.2d 1034).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: