Mercy Health & Rehabilitation Center, Inc. v. Dowling , 649 N.Y.S.2d 261 ( 1996 )

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed as untimely this CPLR article 78 proceeding challenging respondents’ refusal to increase the rate of petitioner’s Medicaid reimbursement based upon an error in the data submitted by petitioner that was used to compute the 1983 rate base. The record does not support petitioner’s contention that respondents’ auditors were aware of the error and fraudulently concealed it during a 1990 audit that covered rate years 1987 and 1988. Respondents did not deny petitioner an audit exit conference (at which the error might have been detected) in recouping overpayments for the 1989 through 1992 rate years; the recoupment was based upon the 1990 audit, at which petitioner was afforded an exit conference.

Although Social Services Law § 368-c (2) requires the Commissioner of Social Services to conduct an on-site audit of residential health care facilities at least once every four fiscal years, the statute does not entitle petitioner to a writ of mandamus ordering that an audit be conducted for rate year 1987 so that the error could be corrected for rate years beginning in 1991. The statutory power to conduct an audit does not expressly or by implication suspend the operation of CPLR 217 (1) (which requires that an article 78 proceeding be commenced within four months after a ruling becomes final and binding) and 10 NYCRR 86-2.13 (which provides that a reimbursement rate effectively becomes final either 120 days after receipt of the initial rate computation sheet, or, if there has been an audit, at the audit exit conference) (see generally, Matter of King v Carey, 57 NY2d 505, 512; Matter of Sylcox v Chassin, 227 AD2d 834). (Appeal from Judgment of Supreme Court, Cayuga County, Contiguglia, J.—CPLR art 78.) Present— Green, J. P., Lawton, Wesley, Callahan and Boehm, JJ.