United Health Services Inc. v. Cuomo

Issue was joined by NY-Penn and the State respondents. NY-Penn moved to dismiss the petition pursuant to CPLR 3211 and 7804 or, alternatively, pursuant to CPLR 3212 for a declaration in its favor on petitioner’s first five causes of action. Petitioner in turn cross-moved for summary judgment. The State respondents and NY-Penn appeal Supreme Court’s judgment—reflected in decretal paragraphs 1, 2, 3 and 10, respectively—which declared the March 1990 memorandum an invalid bi-State planning agreement because it does not comply with the requirements of Public Health Law § 2904 (former [c]),^[1] enjoined the State respondents from dealing with NY-Penn until a valid bi-State planning agreement is entered into, enjoined NY-Penn from acting as a health systems agency for the six-county region until a valid bi-State agreement is entered into, and denied NY-Penn’s motion to dismiss the petition pursuant to CPLR 3211 and 7804. Petitioner cross-appeals, as limited by its brief, from Supreme Court’s dismissal of its claim for annulment of the Department of Health’s declaratory ruling, issued in response to petitioner’s

As set forth in their briefs, the State respondents and NY-Penn now request that their appeal be dismissed because the arguments upon which it relied have since been rendered moot by the passage of the Laws of 1991 (ch 510)^[2] and by the execution of a new memorandum of understanding between New York and Pennsylvania dated October 15, 1991 (hereinafter the October 1991 memorandum). There is substantial discussion by the parties regarding whether this court may consider the October 1991 memorandum inasmuch as it is dehors the record. This memorandum, which is made retroactive to March 1, 1990, appears not in the record but as an addendum to the State respondents’ brief (see, Gintell v Coleman, 136 AD2d 515 , 517; Broida v Bancroft, 103 AD2d 88 , 93). Yet, even were we to take judicial notice of this memorandum’s existence as urged by respondents (see, Brandes Meat Corp. v Cromer, 146 AD2d 666 , 667; Rex Paving Corp. v White, 139 AD2d 176 ,183, n 2), given that Supreme Court’s judgment grants injunctive relief "until a valid bi-State planning agreement is entered into by and between * * * New York and * * * Pennsylvania pursuant to and in accordance with Public Health Law § 2904 (c)”, whether this memorandum satisfies that condition is an assessment the parties all agree should be made in the first instance by Supreme Court and not at the appellate level (see, Bouchardeau v Bouchardeau, 63 AD2d 975 ). Although respondents concede that the issue of validity of the October 1991 memorandum is not before us, their mootness argument asks us to assume its validity. In view of the manner in which the injunctive relief was fashioned, the validity issue is very much alive and NY-Penn’s claim that petitioner bears the burden of commencing a separate action to challenge the efficacy of the October 1991 memorandum— an action which presumably is now barred by the four-month Statute of Limitations—is unavailing.

Petitioner’s contention in its cross appeal that the making or establishment of a valid bi-State agreement is a rule