*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 451

CA 10-02129

PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND GORSKI, JJ. IN THE MATTER OF COUNTY OF HERKIMER,

PETITIONER-RESPONDENT,

V ORDER RICHARD F. DAINES, AS COMMISSIONER OF NEW YORK

STATE DEPARTMENT OF HEALTH, AND NEW YORK STATE

DEPARTMENT OF HEALTH, RESPONDENTS-APPELLANTS.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF COUNSEL), FOR RESPONDENTS-APPELLANTS.

WHITEMAN, OSTERMAN & HANNA LLP, ALBANY (CHRISTOPHER E. BUCKEY OF COUNSEL), AND NANCY ROSE STORMER, P.C., UTICA, FOR

PETITIONER-RESPONDENT. Appeal from a judgment (denominated order and judgment) of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered May 3, 2010 in a proceeding pursuant to CPLR article 78. The judgment, among other things, granted the petition and directed respondents to reimburse petitioner the sum of $692,296.37.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating subparagraph (B) of the second decretal paragraph and as modified the judgment is affirmed without costs ( see Matter of County of St. Lawrence v Daines , 81 AD3d 212; Matter of County of Niagara v Daines , 79 AD3d 1702, 1705-1706). Entered: April 29, 2011 Patricia L. Morgan

Clerk of the Court