This is an article 78 proceeding. The class respondents Brad H., Robert K., Michael R., Susan T., and Kevin W., who were sued on behalf of themselves and all others similarly situated, move to dismiss the petition against them as respondents, and to intervene as party petitioners. The motion is supported by a proposed verified intervention petition, as required by CPLR 1014, with a cross claim against petitioner. The first portion of the motion is unopposed. Only the State respondents oppose the intervention branch of the motion.

In Brad H. v City of New York (Brad H.) (185 Misc 2d 420 [Sup Ct, NY County], affd for reasons stated below 276 AD2d 440 [1st Dept 2000]), a class action, this court issued a preliminary injunction requiring the defendants there to provide discharge planning to inmates of New York City jails who were treated for mental illness while incarcerated, almost all of whom were being discharged from jail without any assistance. Part of the discharge planning included Medicaid assistance where appropriate. Thereafter the action settled. An issue was raised subsequently by the City defendants there about the timing of determining Medicaid eligibility. In Brad H., 2003 Slip Op 51412(U), this court granted the City defendants' motion to modify the stipulation of settlement, and sua sponte required the granting of temporary Medicaid benefits for any class member in immediate need of such assistance pending the completion of an investigation of the class member's [*2]application for Medicaid, pursuant to Social Services Law § 133. That statute provides: "If it shall appear that a person is in immediate need, temporary assistance or care shall be granted pending completion of an investigation." In spite of this court's having been affirmed by the Appellate Division, First Department (8 AD3d 142 [2003]), which also cited to Social Services Law § 133, the State respondents have balked at the issuing of these temporary Medicaid benefits and are claiming that no State law authorizes the provision of Medicaid benefits to a person not found eligible for those benefits, in spite of the clear mandate of Social Services Law § 133. Because none of the State respondents here were parties to Brad H., no relief, such as contempt of court, could be sought against them there, and thus this proceeding ensued.

To be permitted to intervene in an article 78 proceeding, a proposed intervenor has to comply with the statute of limitations (Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating Corp., 291 AD2d 40, 48 [1st Dept 2001]). The statute of limitations here is four months (CPLR 217 [1]). The motion was not made within four months of when the claims accrued. The claims at issue arose in September, 2005 when the General Counsel for respondent The New York State Department of Health denied petitioner's request for approval of a local rule to permit temporary assistance grants during the investigation period. The proposed intervenors became aware of the denial during that same month. The motion to intervene was not made until March 17, 2006. Thus, the statute of limitations had run when the motion was made.

In order to be allowed to intervene and relate their claims back to those in the original pleading, as the proposed intervenors argue should be permitted, their claims and the original petitioner's must be grounded on the same occurrence or transaction, and the petitioner and proposed intervenors must be "so closely related that the original petitioner's claim[s] would have given the respondent notice of the proposed intervenor's specific claim[s] so that the imposition of the additional claim[s] would not prejudice the respondent." (Matter of Greater NY Health Care Facilities Assn. v DeBuono, 91 NY2d 716, 721 [1998].) The interrelationship is of the parties, not the issues as contended by the proposed intervenors. Here, the petitioner and the proposed intervenors are not interrelated. (see id.) They are adversarial parties in this proceeding (petitioner versus respondents), as they have been throughout the years of the Brad H. litigation.

Furthermore, the proposed cross claim is no such thing. A cross claim is by one defendant, or respondent (CPLR 105 [b]), against another (CPLR 3019 [b]). It is not by one petitioner (or plaintiff) against another petitioner (or plaintiff).

The proposed intervenors had objected to this court's considering the State respondents' papers opposing the intervention branch of the motion. Although the State respondents' memorandum of law in opposition to the motion was served late, the motion was adjourned in the Motion Support Office Courtroom for over one month after the memo of law was served and then set for oral argument before this court over one month thereafter. The proposed intervenors prepared their reply papers, and, if they were not felt to be adequate, a request to serve and submit substitute or supplemental reply papers could have been made. None was. Thus, this court exercised its discretion to consider the opposition memorandum of the State respondents (see Rodriguez v Tiwari, 265 AD2d 247, 248 [1st Dept 1999]; Kavakis v Total Care Sys., 209 AD2d 480 [2nd Dept 1994]).

Therefore, by this court's separate decision and order, the motion was granted to the extent of dismissing the petition as against movants. The intervention has not been permitted.

Dated: New York, New York

July 11, 2006RICHARD F. BRAUN, J.S.C.