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SHEFFIELD TOWERS v. NOVELLO

293 A.D.2d 182 (2002)

741 N.Y.S.2d 103

SHEFFIELD TOWERS REHABILITATION AND HEALTH CARE CENTER et al., Respondents, v. ANTONIA NOVELLO, as Commissioner of the New York State Department of Health, et al., Appellants.

Appellate Division of the Supreme Court of the State of New York, Second Department.

April 22, 2002.

Attorney(s) appearing for the Case

Eliot Spitzer, Attorney General, New York City (Marion R. Buchbinder, Michael S. Belohlavek and David Axinn of counsel), for appellants.

Salamon, Gruber, Newman & Blaymore, P.C., Roslyn Heights (Sanford Strenger of counsel), for respondents.

RITTER, J.P., and GOLDSTEIN, J., concur with TOWNES, J.; McGINITY and H. MILLER, JJ., concur in part and dissent in part and vote to reverse the order and remit the matter to the New York State Department of Health for a determination on the issue of necessity in a separate opinion by McGINITY, J.

OPINION OF THE COURT

TOWNES, J.

In this action for an injunction pursuant to Public Health Law § 2801-c and a declaratory judgment, the plaintiffs, who seek to construct a nursing home in Freeport, challenge a temporary moratorium imposed by the New York State Department of Health (hereinafter the DOH) upon the processing of nursing home construction applications pending on August 3, 2000. The verified complaint, filed on November 29, 2000, seeks a...

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