
    In the Matter of Katherine Luther Corporation, Respondent, v Brian J. Wing, as Acting Commissioner of Social Services of State of New York, et al., Appellants.
    [708 NYS2d 656]
   —Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Supreme Court erred in granting the petition alleging that the New York State Department of Social Services acted in violation of 10 NYCRR 86-2.15 former (c) by completing an audit of petitioner’s Medicaid reimbursement rates while petitioner’s rate appeal was pending with the New York State Department of Health pursuant to 10 NYCRR 86-2.13 (a). 10 NYCRR 86-2.15 does not apply to receivers or new operators of ongoing facilities (see, 10 NYCRR 86-2.15 [a] [2]). There is no basis for awarding attorney fees pursuant to 42 USC § 1988 (b) or CPLR article 86 (see, Matter of New York State Clinical Lab. Assn, v Kaladjian, 194 AD2d 189, 193, affd 85 NY2d 346). (Appeal from Judgment of Supreme Court, Oneida County, Buckley, J. — CPLR art 78.) Present — Green, J. P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.  