           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

451
CA 10-02129
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND GORSKI, JJ.


IN THE MATTER OF COUNTY OF HERKIMER,
PETITIONER-RESPONDENT,

                      V                                            ORDER

RICHARD F. DAINES, AS COMMISSIONER OF NEW YORK
STATE DEPARTMENT OF HEALTH, AND NEW YORK STATE
DEPARTMENT OF HEALTH, RESPONDENTS-APPELLANTS.


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF
COUNSEL), FOR RESPONDENTS-APPELLANTS.

WHITEMAN, OSTERMAN & HANNA LLP, ALBANY (CHRISTOPHER E. BUCKEY OF
COUNSEL), AND NANCY ROSE STORMER, P.C., UTICA, FOR
PETITIONER-RESPONDENT.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Herkimer County (Michael E. Daley, J.), entered May 3,
2010 in a proceeding pursuant to CPLR article 78. The judgment, among
other things, granted the petition and directed respondents to
reimburse petitioner the sum of $692,296.37.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating subparagraph (B) of the
second decretal paragraph and as modified the judgment is affirmed
without costs (see Matter of County of St. Lawrence v Daines, 81 AD3d
212; Matter of County of Niagara v Daines, 79 AD3d 1702, 1705-1706).




Entered:    April 29, 2011                       Patricia L. Morgan
                                                 Clerk of the Court
