57 A.D.2d 996 | N.Y. App. Div. | 1977
Appeal from a judgment of the Supreme Court at Special Term, entered August 23, 1976 in Albany County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul the determination of respondent rescinding its conditional approval of the establishment of petitioner’s health related facility. On April 23, 1971 a partnership doing business as Bayswater Health Related Facility (hereinafter Bayswater) was granted approval by the Public Health Council of the State of New York (hereinafter Council) for the establishment of a 220-bed health related facility (Public Health Law, § 2801-a). The approval was contingent upon the partnership filing with the Council a mortgage commitment within 120 days of the date of approval for construction. On December 12, 1972 the commissioner approved construction (Public Health Law, § 2802). A mortgage commitment was not filed. In December, 1973 an application was made to the Department of Health for approval of the sale of the partnership interests of two of the three partners. Though staff personnel recommended approval of such sale, no formal approval was given by the department. In February, 1975 the Council notified Bayswater that its failure to file the mortgage commitment constituted a withdrawal of its application for construction and, accordingly, the approval heretofore granted was a nullity. Thereafter, apparently in response to a decision of the Court of Appeals in Matter of Bayswater Health Related Facility v Karagheuzoff (37 NY2d 408), which restored Bayswater’s building permit that had been revoked by the City of New York, the Council informed Bayswater that its contingent establishment construction approval had been reinstated on the condition that there be "demonstrated by the applicant no later than 45 days of the date of this letter that construction of the building is proceeding”. The letter from the Council made no mention of the previously-required mortgage commitment. Bayswater, in reliance upon the reinstated conditional approval, incurred obligations and made investments of approximately $1,500,-000 in proceeding with construction to the extent that by January, 1976 the entire perimeter of the facility was constructed to a height of four feet, elevator casings were installed, underground plumbing was completed and subcontracts were let. Yet, shortly before January 1, 1976, specifically December 19, 1975, the Council reviewed the matter and advised Bayswater that its application and conditional approval was determined to be "withdrawn” and, further, that the application for approval of the sale of the interest of two of the partners was likewise "deemed withdrawn”. After Council’s refusal to reconsider, Bayswater commenced an article 78 proceed