Howe Avenue Nursing Home v. Boyd B. Nafus Et Al‪.‬

[54 A.D.2d 686 Page 687] To the extent that the complaint asserts a plenary action for money damages against the County of Westchester for medical services and assistance (Medicaid), it constitutes an impermissible evasion of CPLR article 78 proceedings for review of the administrative determination denying Medicaid, which determination is itself not yet final. Plaintiffs' cross motion for a preliminary injunction requiring the defendant county to provide medical assistance pending the fair hearing to be held by the New York State Department of Social Services should have been denied. The granting of such motion constituted an impermissible prejudgment of eligibility. However, section 366 of the Social Services Law, and the regulations adopted pursuant thereto, to the extent that they fail to furnish medical providers an opportunity for a fair hearing (after county denial of eligibility), constitute a denial of due process and violate the Fourteenth Amendment to the United States Constitution and the corresponding provisions of the State Constitution (see Matter of Peninsula Gen. Nursing Home [Sugarman], NYLJ, June 5, 1975, p 2, col 6; Coral Gables Convalescent Home v Richardson, 340 F Supp 646; Ross v State of Wisconsin Dept. of Health & Social Servs., 369 F Supp 570; see, also, Mount Sinai Hosp. v Kornegay, 75 Misc. 2d 302; Knickerbocker Hosp. v Downing, 65 Misc. 2d 278). Therefore Special Term properly directed that plaintiffs be made parties to the fair hearing pending before the New York State Department of Social Services. Upon the argument of this appeal, the county agreed that the plaintiffs should be parties to the pending administrative proceeding.