MATTER OF ROMAN CATHOLIC DIOCESE OF ALBANY v. New York State Dep't of Health

OPINION OF THE COURT Memorandum. The order of the Appellate Division should be reversed, without costs, and the petition dismissed. We assume, without deciding, that petitioners had standing to bring this proceeding (Association of Contr. Plumbers v Fruchtman, 64 NY2d 808, 810; Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs., 63 NY2d 100, 104; Jainchill v Citibank, 62 NY2d 739, 740). On the merits, however, we agree with Justice Howard A. Levine, the dissenter at the Appellate Division, that only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers constitutes a rule or regulation required by NY Constitution, article IV, § 8 to be filed in the office of the Department of State. We agree also, for the reasons stated by the dissenting Justice (109 AD2d, at p 148), that the 50% guideline employed by the Department of Health in passing on the applications involved in the present proceeding did not constitute and was not applied as such a rule, and in view of that conclusion do not reach the constitutional arguments presented by the intervener and amici. Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum. Order reversed, etc.