Trustees of the Masonic Hall & Asylum Fund v. Commissioner of the New York State Department of Health

—Casey, J. Appeal from a judgment of the Supreme Court (Williams, J.), entered July 27, 1992 in Albany County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to inter alia, annul petitioner’s 1987 through 1991 Medicaid reimbursement rates. Respondents contend that Supreme Court erred in holding that 10 NYCRR 86-2.31 (a), promulgated in December 1991, could not be applied to petitioner’s Medicaid reimbursement rates for the period 1989 through 1991. We reject this contention in light of recent case law from this Court which holds that application of the regulation to facilities’ 1989 through 1991 rates constitutes impermissible retroactive ratemaking (see, Matter of New York Assn. of Homes & Servs. for Aging v Commissioner of N. Y. State Dept. of Health, 195 AD2d 822; [807] New York Assn. of Counties v Axelrod, 191 AD2d 932, lv dismissed 82 NY2d 705). As to respondents’ objection to Supreme Court’s award of interest, we agree that it was improper (see, Matter of Trustees of Masonic Hall & Asylum Fund v Commissioner of N. Y. State Dept. of Health, 193 AD2d 249 [decided herewith]). Mikoll, J. P., Mercure, Cardona and Mahoney, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by deleting so much thereof as directed respondents to pay interest and, as so modified, affirmed.