Jayson
Bulmahn, Petitioner
against
New York State Office of Medicaid Inspector General
NEW YORK STATE DEPARTMENT OF HEALTH,
Respondents.
|
4338/2011
GREGORY STAMM, ESQ.
Attorney for Petitioner
KATE H. NEPVU, ESQ.
Attorney for Respondents
Frederick J. Marshall, J.
By Notice of Motion dated April 16, 2014, the petitioner has moved this Court for an
Order requiring the respondents to comply with the directive of the Appellate Division,
Fourth Department, as set forth in that Court's Memorandum Decision dated May 3,
2013. Matter of Bulmahn v New York State Off. of Medicaid Inspector General, et
al, 106 AD 3rd 1504 [4th Dept.2013], re-argument denied, 109 AD 3rd 1220 [4th
Dept.2013], leave to appeal denied, (22 NY3d 869 [2014]). Petitioner's motion was
supported by the affirmation of Gregory Stamm, Esq. dated April 16, 2014. Respondents
submitted the affirmation in opposition of Andrew D. Bing, Esq., dated May 1,
2014.
This proceeding, originally brought pursuant to CPLR Article 78, was
transferred by this Court to the Appellate Division, Fourth Department, pursuant to
CPLR §7804(g). After determining that this proceeding was properly transferred,
the Appellate Division annulled respondent's determination that the New York State
Department of Health was entitled to recover Medicaid overpayments from petitioner,
granted the amended petition and remitted the matter to the respondent for further
proceedings not inconsistent with it's decision. See Matter of Bulmahn, id,
@ 1504.
Upon reconsideration pursuant to the Appellate Division's direction, the
respondent made a determination that the petitioner was entitled to a partial refund, but
further determined that the Department of Health was entitled to retain the sum of
$150,155.
Petitioner alleges in its motion that the respondent did not properly follow
the direction of the Appellate Division, erred in not following its own regulations and
practices and [*2]wrongfully withheld amounts properly
due to the petitioner. The respondents, while defending its method of computation, also
challenged the jurisdiction of this Court to hear and make a determination with regard to
petitioner's motion. They contend that once this matter was transferred to the Appellate
Division, this Court was divested of its jurisdiction and the petitioner was relegated to
commencing a new Article 78 proceeding to have this dispute determined.
The jurisdiction of the original Article 78 proceeding rested with this Court.
However, once the matter was transferred to the Appellate Division, this Court was
divested of its jurisdiction and the jurisdiction to hear and determine subsequent issues
now lies with the Appellate Division, Fourth Department. Matter of Quinn v
Werner, 96 AD 2nd 1079 [2nd Dept.1983]. Of particular note is the fact that the
Appellate Division remitted back to the respondent for a re-determination and did
nothing to restore jurisdiction to the Supreme Court. Thus, this Court is without
jurisdiction to hear or determine the petitioner's motion. City of Syracuse v
Surles, 154 AD 2nd 949 [4th Dept.1989].
Respondent's suggestion that this Court should dismiss petitioner's motion,
thereby requiring him to re-commence a new Article 78 proceeding, is misplaced.
Indeed, since jurisdiction already lies with the Appellate Division, it would be improper
to do so.
Therefore, it is
ORDERED, that the Clerk is directed to transfer the file to the Appellate
Division, Fourth Department upon service of a copy of this Order, with notice of
entry.
The foregoing shall constitute the decision and order of this Court.
DATED:May 30, 2014
____________________________
Hon. FREDERICK J. MARSHALL
Justice, Supreme Court