
    State of New York, Appellant, v Fred Springer et al., Doing Business as Promenade Nursing Home, et al., Respondents.
   — In an action (1) to enjoin defendants from operating a certain nursing home without the approval of the Public Health Council and (2) for the appointment of a receiver to operate and administer the said home pending such approval, the appeal is from an order of the Supreme Court, Queens County, dated August 4, 1975, which (1) denied plaintiff’s motion for a preliminary injunction etc., and (2) granted defendants’ cross motion to dismiss the amended complaint. Order modified by adding thereto a provision granting plaintiff leave to serve a further amended complaint. As so modified, order affirmed, without costs. Plaintiff’s further amended complaint must be served within 20 days after service upon it of a copy of the order to be made hereon, together with notice of entry thereof. The record is virtually devoid of evidentiary facts to justify invocation of the drastic temporary relief sought. The Joint Commission on Accreditation of Hospitals stated, in a letter dated September 27, 1973, that "the home should be commended for excellent management and program of care.” The record does not contain any indication that patient care is inadequate or that the patients are in any jeopardy. While there are strong indications that the amended complaint improperly seeks to retroactively apply a statute (Public Health Law, § 2801-a, subd 4, par [a]) which did not take effect until June 1, 1970, the matter is not totally free from doubt, a doubt engendered by the State’s inability to obtain certain records. The overriding concern that the elderly and infirm patients of nursing homes receive proper protection (see Uzzillia v Commissioner of Health of State of N. Y, 47 AD2d 492) requires that leave to replead be granted. Martuscello, Acting P. J., Cohalan, Christ, Munder and Shapiro, JJ., concur.  