
    In the Matter of Mario A. Procaccino, Individually and as Comptroller of the City of New York, et al., Appellants, v. Richard E. Stewart, as Superintendent of Insurance of the State of New York, et al., Respondents. In the Matter of City of New York, Appellant, v. Richard E. Stewart, as Superintendent of the State of New York, et al., Respondents.
    Argued September 30, 1969;
    decided October 2, 1969.
    
      
      Jacob D. Fuchsberg and Irving Lemov for appellants in first above-entitled proceeding.
    I. The rate increase was approved in contravention of law. II. The record supports the Special Term finding that the increase approved was in excess of the emergency needs. (Dulberg v. Equitable Life Assur. Soc., 277 N. Y. 17.)
    
      J. Lee Rankin, Corporation Counsel (John R. Thompson, William M. Murphy and Gary Mailman of counsel), for appellant in second above-entitled proceeding.
    I. The Superintendent violated lawful procedure in approving a general increase in AHS’ subscriber rates without receiving certification of AHS’ hospital payment rates from the State Commissioner of Health and without himself approving such hospital rates as to reasonableness. (Red Hook Stor. Co. v. Department of Labor, 295 N. Y. 1; Matter of Thaler v. Stern, 44 Misc 2d 278; Orinoco Realty Co. v. Bandler, 233 N. Y. 24; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Board v. Hearst Pub., 322 U. S. 111.) II. The Superintendent’s action exceeded the bounds of his implied or inherent power to cope with- an emergency. III. The Superintendent must define the emergency pursuant to which he is exercising his emergency powers. (Matter of Perpente v. Moss, 293 N. Y. 325; Matter of Elite Dairy Prods, v. Ten Eyck, 271 N. Y. 488.) IV. Any rate increase granted pursuant to emergency powers must be for a limited time only. V. A rate increase granted pursuant to emergency powers must be limited in amount to what is necessary to prevent insolvency during the emergency period. VI. In any event, the Superintendent’s decision was arbitrary and capricious. VII. The City of New York has standing to maintain this proceeding. (Looram v. Looram, 269 N. Y. 296; Matter of Nostrand Check Cashing Co. v. Clark, 27 Misc 2d 799; Matter of Donohue v. Cornelius, 17 N Y 2d 390.)
    
      Louis J. Lefkowitz, Attorney-General (Philip Weinberg and Samuel A. Hirshowitz of counsel), for Richard E. Stewart, respondent.
    The Special Term Justice impermissibly substituted his judgment for that of the Superintendent of Insurance in annulling the determination, and incorrectly ruled that the Superintendent was powerless to act on the application until the State Health Department promulgates regulations implementing the 1969 amendment to section 2807 of the Public Health Law, the statute requiring hospital-rate approval by the Health Department. (Matter of Old Republic Life Ins. Co. v. Wikler, 12 A D 2d 310, 9 N Y 2d 524; Matter of Compensation Rating Bd. v. Superintendent of Ins., 8 A D 2d 455, 8 N Y 2d 803; Matter of Perman Realty Corp. v. Weaver, 3 A D 2d 723, 3 N Y 2d 821; Matter of Fink v. Cole, 1 N Y 2d 48; Matter of Stracquadanio v. Department of Health, 285 N. Y. 93; Matter of Colton v. Berman, 21 N Y 2d 322; Matter of Park East Land Corp. v. Finkelstein, 299 N. Y. 70; Matter of Mid-Island Hosp. v. Wyman, 25 A D 2d 765; Matter of Guardian Life Ins. Co. v. Bohlinger, 284 App. Div. 110, 308 N. Y. 174; Matter of Mouakad v. Ross, 274 App. Div. 74.)
    
      
      Robert A. Bicks and Charles M. Mitchell for Associated Hospital Service of New York and another, respondents.
    I. The Superintendent of Insurance was not obliged to receive ‘ ‘ certification ” of hospital payment rates from the State Commissioner of Health under the newly amended Public Health Law, before approving AHS’ subscriber charge change. II. Special Term’s view disables prospective subscriber rate-making. III. Settled law supports the Superintendent’s action here, based on reasoned judgments as to Blue Cross’ future costs. (People ex rel. Consolidated Water Co. of Utica v. Maltbie, 275 N. Y. 357, 303 U. S. 158; Matter of Mouakad v. Ross, 274 App. Div. 74, 298 N. Y. 922.) IV. For the Commissioner of Health’s view as to the prospects of 1970 hospital costs, the city would have this court substitute the city’s own appraisal, based on inaccurate characterization of . how the present Blue Cross formula works, and a claimed superior insight into what new hospital reimbursement standards will provide. V. The Appellate Division correctly held that “ Special Term may not substitute its judgment for that exercised, if properly done, by the ” Insurance Department. (Matter of Gambino v. State Liq. Auth., 4 A D 2d 37, 4 N Y 2d 997.)
   Chief Judge Fuld.

Since, in our view, the Superintendent, in approving the increase in subscriber rates, acted neither in excess of his jurisdiction, in violation of lawful procedure nor in abuse of discretion or arbitrarily, the courts have no alternative but to confirm his determination (CPLR 7803).

On August 15,1969 the Superintendent of Insurance approved an increase, averaging 43.3%, in the rates which the respondent Associated Hospital Service of New York (AHS) could charge its community-rated Blue Cross subscribers. The petitioners, seeking to annul that determination, contend that the Superintendent was without power to grant any increase in excess of a temporary “ emergency ” one of 33% and that, in any event, his decision was arbitrary.

Under subdivision 2 of section 255 of the Insurance Law, AHS is required, when it seeks to increase its rates, to submit a proposed schedule to the Superintendent of Insurance for his approval. The statute provides that such approval may be refused if the proposed rates are ‘' excessive.” The petitioners do not argue that the proposed rates violate this standard but urge, instead, that a newly enacted amendment to section 2807 of the Public Health Law (L. 1969, ch. 957), coupled with section 254 of the Insurance Law, operates to limit the Superintendent, for the time being, to approval of a short term "emergency ” increase.

These statutory provisions relate, not to the rates charged to the subscribers, but to the schedule of payments which AHS makes to hospitals for the services they provide. Section 2807 of the Public Health Law requires that, after December 31,1969, such payments must be certified by the State Commissioner of Health as “ reasonably related to the costs of efficient production of such service ” and section 254 of the Insurance Law declares that they must be approved as to reasonableness ” by the Superintendent of Insurance. Despite the petitioners’ contentions, there is nothing in these sections which purports to limit or circumscribe the Superintendent’s power to approve schedules for subscriber rates pending the certification of hospital payments by the Health Commissioner. As the Superintendent noted in the course of his decision, “ [t]here is no required time sequence for regulatory approval of subscriber rates, on the one hand, and regulatory approval of hospital payment rates on the other.” The approval of hospital payment rates, as certified by the Commissioner of Health under section 2807 of the Public Health Law, and the determination of reasonableness of proposed subscriber rates under section 255 of the Insurance Law appear to be procedurally independent and there is nothing in the legislation to prevent the Superintendent from acting upon a proposal to increase subscriber rates even though the Commissioner has not yet certified the rates for hospital payments.

Nor did the Superintendent abuse his discretion or act arbitrarily, as the petitioners insist, by approving (in August of 1969) an increase in AHS’s subscriber rates which was to remain in effect through December 31, 1970, before the cost to it of hospital services became definitively known. At the time the application was made—■ and this is conceded — AHS was faced with imminent statutory .insolvency and it did not appear that hospital payment schedules, under the new statutory formulation, would be available until some time in 1970. Under the circumstances, it was permissible, indeed essential, for the Superintendent to estimate such payments, basing his determination, as the record clearly demonstrates he did, upon reasonable cost projections. (Cf. People ex rel. Consolidated Water Co. v. Maltbie, 275 N. Y. 357, 368.) In fact, the only evidence adduced at the hearing relating to the cost projections adopted by the Superintendent was the testimony of the Deputy Commissioner of Health that such cost projections were, if anything, too conservative and too low. There is nothing in the record to support the inference—which the petitioners seek to have the court draw—that the implementation of the new system of computing hospital reimbursement rates (under amended section 2807) will result in such a significant change in AHS’s over-all costs during the period of the rate increase here at issue as to justify labeling the Superintendent’s determination arbitrary. Moreover, considering the expense and inconvenience—both to AHS and its subscribers ■—of a further rate change, it was entirely reasonable for the Superintendent to fix a rate that would be adequate for a 15-month period rather than the limited 4-month so-called emergency ” period proposed by the petitioners.

The order appealed from should be affirmed, without costs.

Scileppi, J. (dissenting).

I vote to reverse and to reinstate the determination of Special Term for the reasons stated in the dissenting opinion below and in the opinion at Special Term. I merely add the following to further amplify my position.

Section 2807 of the Public Health Law, as amended (L. 1969, ch. 957), when read with section 254 of the Insurance Law requires the Superintendent of Insurance to obtain a certification from the Commissioner of Health prior to the approval of hospital rates. Respondents argue, however, that the failure to obtain such certification in no way precludes the Superintendent from approving subscriber rate increases pursuant to the power granted him by section 255 (subd. 2) of the Insurance Law. I cannot agree. While it is true that there is no express statutory mandate requiring certification as a prerequisite to an increase in subscriber rates, it is clear that such was the legislative intent (Red Hook Cold Stor. Co. v. Department of Labor, 295 N. Y. 1,7).

Under subdivision 2 of section 255 of the Insurance Law, the Superintendent is given the power to grant or deny proposed subscriber rate increases on the basis of whether or not the proposed rates are “ excessive, inadequate or unfairly discriminatory ”. Now if the Superintendent is precluded from determining hospital rates prior to the Commissioner’s certification (Public Health Law, § 2807; Insurance Law, § 254) and AHS’ principal cost of operation is hospital reimbursement, how can the Superintendent ever determine the excessiveness of a proposed rate increase prior to certification? The answer is simply that he cannot.

As was stated in Matter of Thaler v. Stern (44 Misc 2d 278, 286), the case involving the last AHS "temporary ’ ’ rate increase: ‘ ‘ There would be no need for subscriber rate increases were it not for two factors: firstly, there has been a significant increase in utilization of hospital services by AHS subscribers and secondly, and more importantly, there has been a tremendous increase in the reimbursable cost of hospital services.” (Emphasis added.)

Even assuming, however, that the Superintendent was not statutorily precluded from granting a rate increase prior to certification, it is my opinion that the Superinendent’s determination was nevertheless arbitrary.

Everyone agrees that the Superintendent acted properly in taking emergency measures to maintain AHS’ statutory solvency. On remand from Special Term, however, the Superintendent determined that an increase of 33% would suffice to achieve that end. The question necessarily raised is upon what basis could the Superintendent project an additional increase of 10.3% through 1970. Special Term determined that there was no rational basis and limited the temporary increase (33%) to 30 days after the Commissioner certified the new reimbursement formula. In reversing Special Term the Appellate Division concluded that the mere fact that Special Term determined that the projected period was too long could hardly be viewed as an abuse of discretion. The majority then proceeded to espouse the oft-stated rule that a reviewing court may not substitute its judgment for that exercised, if properly done, by the administrative agency”.

This cáse, however, does not involve a mere disagreement with an administrative agency as to the propriety of a hasty determination. In such a situation, notwithstanding the fact that, with the benefit of hindsight, a more reasonable result might have been achieved had the determination been postponed to a future date, the rule that the court may not substitute its judgment for that of the agency would apply. In the instant case, however, there was no rational basis at all to support the Superintendent’s determination.

As originally enacted, section 2807 only required that hospital costs be “ reasonably related to the costs of providing [hospital] service ”. ■ This language allowed AHS to pay hospitals on the basis of their actual costs. In amending section 2807 the Legislature sought to do away with the cost-plus reimbursement formula and substitute a statutory standard requiring the Commissioner to certify only those hospital costs that were reasonably related to the costs of efficient production ” of the hospital (L. 1969, ch. 957). The legislative intent was clear: to reduce the skyrocketing hospital costs which would enure to the benefit of the subscribers. The Superintendent, however, made his projected rate increase of 43.3% through 1970 not on the basis of the new formula (effective Jan. 1,1970) but rather on the basis of the cost-plus reimbursement formula which becomes obsolete on December 31, 1969.

In support of that determination, the majority opinion takes the position that: ‘ ‘ Under the circumstances, it was permissible, indeed essential, for the Superintendent to estimate such payments, basing his determination, as the record clearly demonstrates he did, upon reasonable cost projections.”

What is overlooked is that it was impossible for the Superintendent to make a “ reasonable cost projection ” for 1970 since the rates of reimbursement under the new formula were not available at the time he made his determination.

In conclusion, I would merely add that the primary reason for the emergency measures taken by the Superintendent was to maintain the statutory solvency of AHS. This end was clearly accomplished by Special Term and no contention has been made that solvency would in any way be jeopardized if the judgment of Special Term be reinstated. The absence of any other cogent reason why we should sustain this clearly arbitrary determination leads me to conclude that the order of the Appellate Division should be reversed and the judgment of Special Term reinstated.

Judges Burke, Bergan and Gibson concur with Chief Judge Fuld ; Judge Scileppi dissents and votes to reverse and reinstate the judgment of Special Term in a separate opinion in which Judges Bkeitel and Jasen concur.

Order affirmed. 
      
      . Subdivision 2 of section 255 reads, in relevant part, as follows: “ No corporation subject to the provisions of this article shall enter into any contract with a subscriber unless and until it shall have filed with the superintendent of insurance a full schedule of the rates to be paid by the subscribers to such contracts and shall have obtained the superintendent’s approval thereof. The superintendent may refuse such approval if he finds that such rates are excessive, inadequate or unfairly discriminatory.”
     
      
       AHS’ breakdown of its cost of operation is approximately 94% for hospital reimbursement and 6% for overhead.
     