
    In the Matter of County of Schuyler, Respondent, v Howard A. Zucker, as Commissioner of Health, et al., Appellants.
    [23 NYS3d 596]
   Lahtinen, J.

Appeal from a judgment of the Supreme Court (O’Shea, J.), entered October 3, 2014 in Schuyler County, which, among other things, partially granted petitioner’s application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to, among other things, annul a determination of respondent Department of Health denying petitioner’s claims for certain Medicaid reimbursements.

Our recent cases are dispositive of the issues on appeal in this case involving Medicaid reimbursement for pre-2006 overburden expenses. We agree with Supreme Court’s conclusions that petitioner is entitled to such reimbursement, albeit for a different reason; that is, because petitioner submitted its claims within the six-month grace period (see Matter of County of St. Lawrence v Shah, 124 AD3d 88, 92-93 [2014], lv granted 25 NY3d 903 [2015]; see also Matter of County of Broome v Shah, 130 AD3d 1347, 1347 [2015]; Matter of County of Chemung v Shah, 124 AD3d 963, 964 [2015], lv granted 25 NY3d 903 [2015]). “[R]espondent’s challenge to petitioner’s capacity to bring this claim was waived by respondents’ failure to raise capacity as a defense in their answer or a pre-answer motion to dismiss” (Matter of County of Chemung v Shah, 124 AD3d at 964; see Matter of County of Broome v Shah, 130 AD3d at 1347-1348). Contrary to respondent’s argument, mandamus relief was properly granted (see Matter of County of St. Lawrence v Shah, 124 AD3d at 94; Matter of County of Broome v Shah, 130 AD3d at 1347).

Peters, P.J., Garry, Rose and Clark, JJ., concur. Ordered that the judgment is affirmed, without costs.  