
    In the Matter of Michael A. Blase, Doing Business as University Heights Nursing Home, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants.
    Decided January 16, 1986
    
      APPEARANCES OF COUNSEL
    
      Robert Abrams, Attorney-General (Robert Hermann, Peter H Schiff and Clifford A. Royael of counsel), for appellants.
    
      Sharon Couch DeBonis for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to appellants, by vacating so much of the order as enjoined appellants from recouping purported Medicaid over-payments for the years 1973-1979 and compelled appellants to audit respondent’s cost reports for 1981 and 1982 and render a determination within 90 days, and by directing appellants to hold hearings with respect to the cost reports for the years 1973-1979, and except as so modified, the order should be affirmed (see, Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169). With respect to its 1981 and 1982 cost reports, respondent has not demonstrated a clear legal right to an audit and determination within 90 days (see, 10 NYCRR 86-2.7 [c]; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 178, supra), or that such review is a ministerial act mandated by law, and thus mandamus does not lie (see, Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 96).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to appellants, in accordance with the memorandum herein and, as so modified, affirmed.  