                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 28, 2016                   520712
________________________________

In the Matter of COUNTY OF
   SCHUYLER,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
HOWARD A. ZUCKER, as
   Commissioner of Health,
   et al.,
                    Appellants.
________________________________


Calendar Date:   November 19, 2015

Before:   Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

                             __________


      Eric T. Schneiderman, Attorney General, Albany (Victor
Paladino of counsel), for appellants.

      Whiteman Osterman & Hanna, LLP, Albany (Robert S.
Rosborough IV of counsel) and Nancy R. Stormer, Utica, for
respondent.

                             __________


Lahtinen, J.

      Appeal from a judgment of the Supreme Court (O'Shea, J.),
entered October 3, 2014 in Schuyler County, which, among other
things, partially granted petitioner's application, in a combined
proceeding pursuant to CPLR article 78 and action for declaratory
judgment, to, among other things, annul a determination of
respondent Department of Health denying petitioner's claims for
certain Medicaid reimbursements.

      Our recent cases are dispositive of the issues on appeal in
this case involving Medicaid reimbursement for pre-2006
                              -2-                  520712

overburden expenses. We agree with Supreme Court's conclusions
that petitioner is entitled to such reimbursement, albeit for a
different reason; that is, because petitioner submitted its
claims within the six-month grace period (see Matter of County of
St. Lawrence v Shah, 124 AD3d 88, 92-93 [2014], lv granted 25
NY3d 903 [2015]; see also Matter of County of Broome v Shah, 130
AD3d 1347, 1347 [2015]; Matter of County of Chemung v Shah, 124
AD3d 963, 964 [2015], lv granted 25 NY3d 903 [2015]).
"[R]espondent's challenge to petitioner's capacity to bring this
claim was waived by respondents' failure to raise capacity as a
defense in their answer or a pre-answer motion to dismiss"
(Matter of County of Chemung v Shah, 124 AD3d at 964; see Matter
of County of Broome v Shah, 130 AD3d at 1347-1348). Contrary to
respondent's argument, mandamus relief was properly granted (see
Matter of County of St. Lawrence v Shah, 124 AD3d at 94; Matter
of County of Broome v Shah, 130 AD3d at 1347).

     Peters, P.J., Garry, Rose and Clark, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
