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

18
CA 11-01219
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.


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

                    V                             MEMORANDUM AND ORDER

RICHARD F. DAINES, COMMISSIONER, 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, Niagara County (Ralph A. Boniello, III, J.), entered
March 3, 2011 in a proceeding pursuant to CPLR article 78. The
judgment, inter alia, granted the petition in part.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner, a county that is also a social services
district for the purposes of this appeal (see Matter of County of St.
Lawrence v Daines, 81 AD3d 212, 217, lv denied 17 NY3d 703), commenced
this CPLR article 78 proceeding seeking to annul the denial of its
claim for reimbursement for certain Medicaid expenditures known as
overburden expenditures (see generally Matter of Krauskopf v Perales,
139 AD2d 147, affd 74 NY2d 730). Respondents appeal, as limited by
their brief, from the judgment insofar as it granted that part of the
petition seeking reimbursement for certain pre-2006 overburden
expenditures. On appeal, respondents contend that Supreme Court erred
in granting the petition in part because a 2010 amendment (L 2010, ch
109, part B, § 24) to the law known as the Medicaid Cap Statute (L
2005, ch 58, part C, § 1, as amended by L 2006, ch 57, part A, § 60)
extinguished petitioner’s right to reimbursement for overburden
expenditures made prior to July 2006. We reject that contention.

     Initially, we note that we have consistently ruled that
respondents’ duty to reimburse social services districts for
overburden expenditures incurred prior to January 1, 2006 was not
extinguished by the original Medicaid Cap Statute (see Matter of
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                                                         CA 11-01219

County of Erie v Daines, 83 AD3d 1506; Matter of County of Herkimer v
Daines, 83 AD3d 1510; Matter of County of Niagara v Daines, 79 AD3d
1702, lv denied 17 NY3d 703; see also County of St. Lawrence, 81 AD3d
212). Thus, that duty continues unless it was extinguished by the
2010 amendment to the Medicaid Cap Statute. The plain language of the
2010 amendment does not address overburden expenditures or
respondents’ duty to pay them but, rather, it states that, “[s]ubject
to the provisions of subdivision four of section six of this part, the
state/local social services district relative percentages of the non-
federal share of medical assistance expenditures incurred prior to
January 1, 2006 shall not be subject to adjustment on and after July
1, 2006” (L 2010, ch 109, part B, § 24). “ ‘Where words of a statute
are free from ambiguity and express plainly, clearly and distinctly
the legislative intent, resort may not be had to other means of
interpretation’ . . ., and the intent of the Legislature must be
discerned from the language of the statute . . . without resort to
extrinsic material such as legislative history or memoranda” (Matter
of Rochester Community Sav. Bank v Board of Assessors of City of
Rochester, 248 AD2d 949, 950, lv denied 92 NY2d 811; see Matter of
Aquilone v Board of Educ. of City School Dist. of City of N.Y., 86
NY2d 198, 204). Consequently, inasmuch as the plain language of the
2010 amendment does not mention overburden expenditures or
respondents’ preexisting duty to reimburse petitioner for such
expenses incurred prior to 2006, that duty is not extinguished by the
amendment.

     In addition, the 2010 amendment states that “this act shall not
be construed to alter, change, affect, impair or defeat any rights,
obligations, duties or interests accrued, incurred or conferred prior
to the effective date of this act” (L 2010, ch 109, part B, § 40 [c]).
Thus, for that reason as well, respondents’ contention that the 2010
amendment defeats their preexisting duty to reimburse petitioner for
the overburden expenditures is without merit.

     In any event, an examination of the legislative history of the
2010 amendment fails to support respondents’ contentions. There is
nothing in the legislative history indicating that the Legislature
acted in response to the prior judicial decisions concerning the
Medicaid Cap Statute (cf. Brothers v Florence, 95 NY2d 290, 299-300).
The New York State Senate Sponsor’s memorandum states, however, that
the law “would clarify the State’s authority to withhold payments to
local social services districts for past due youth facility
reimbursement, and authorize the transfer of up to $27 million from
the Youth Facility per diem account to the General Fund.” “The maxim
expressio unius est exclusio alterius is applied in the construction
of the statutes, so that where a law expressly describes a particular
act, thing or person to which it shall apply, an irrefutable inference
must be drawn that what is omitted or not included was intended to be
omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes §
240; see Golden v Koch, 49 NY2d 690, 694). Because the Legislature
included a provision permitting respondents to withhold payments for
certain reimbursements while at the same time failed to include a
provision indicating that the Legislature intended to permit
respondents to withhold or deny claims for reimbursement of overburden
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                                                         CA 11-01219

expenditures, we conclude that “an irrefutable inference must be drawn
that” the legislators intentionally omitted such a provision (Statutes
§ 240).

     We reject respondents’ reliance upon an affidavit prepared after
the enactment of the 2010 amendment by the New York State Department
of Health’s former Director of the Bureau of Health Insurance
Programs, Division of Legal Affairs, which purports to set forth the
legislative history of the Medicaid Cap Statute and the 2010
amendment. The affidavit, “written [almost] a year after passage of
the [2010] amendment and constituting, therefore, no part of the
legislative process, is not entitled to consideration as legislative
history” (Matter of Lorie C., 49 NY2d 161, 169).

     Based on our determination, we see no need to address
petitioner’s further contentions.




Entered:   January 31, 2012                     Frances E. Cafarell
                                                Clerk of the Court
