Gray v. Wing

—Order, Supreme Court, New York County (William Wetzel, J.), entered June 13, 1997, which dismissed a CPLR article 78 petition to enjoin administrative proceedings against petitioner, unanimously affirmed, without costs. Determination of respondent Department of Health dated April 1, 1998, which, after an administrative hearing, affirmed respondent’s prior determination to exclude petitioner from participation in the Medicaid program for two years, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [William Wetzel, J.], entered June 24, 1998) dismissed, without costs. Petitioner did not divest the agency of jurisdiction by choosing to resign from the Medicaid panel (see, Matter of Senise v Corcoran, 146 Misc 2d 598, 600). The provision in 18 NYCRR 519.22 (b) that a “decision will be issued * * * in any event within 120 days of the conclusion of the hearing or the closing of the record” is directory, rather than mandatory (cf., Matter of Gonkjur Assocs. v Abrams, 57 NY2d 853, 856), such that respondent’s failure to issue its decision within the specified time frame did not, without more, deprive it of jurisdiction (see, Matter of Cosmos Forms v State Div. of Human Rights, 150 AD2d 442, 443), and petitioner, having made no showing of prejudice by reason of the delay, is not entitled to relief (see, Tiffany & Co. v Smith, 224 AD2d 332, lv denied 88 NY2d 806). The administrative determination is supported by substantial evidence (see, Matter of Sarfo v Glass, 243 AD2d 824, 825) and the penalty is not inappropriate (see, e.g., Matter of Mirilashvili v Dowling, 213 AD2d 175, 176). Concur — Sullivan, J. P., Rosenberger, Wallach, Mazzarelli and Andrias, JJ.