
    In the Matter of County of Broome, Respondent, v Nirav R. Shah, as Commissioner of Health, et al., Appellants.
    [12 NYS3d 916]
   Peters, P.J.

Appeal from a judgment of the Supreme Court (Tait, J.), entered June 16, 2014 in Broome County, which partially granted petitioner’s application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to, among things, annul a determination of respondent Commissioner of Health disallowing petitioner’s claims for certain Medicaid reimbursements.

This Court recently held that a 2012 amendment to the Medicaid Cap Statute (see L 2012, ch 56, § 1, part D, § 61) was not unconstitutional and interpreted the amendment as having imposed a statute of limitations which, upon the expiration of a six-month grace period beginning on November 26, 2014, barred the submission of claims for reimbursement of overburden expenses incurred by counties before 2006 (see Matter of County of Chemung v Shah, 124 AD3d 963, 963 [2015], lv granted 25 NY3d 903 [2015]; Matter of County of St. Lawrence v Shah, 124 AD3d 88, 92-93 [2014], lv granted 25 NY3d 903 [2015]). During such grace period, petitioner submitted claims to respondent Department of Health (hereinafter DOH) for reimbursement of pre-2006 overburden expenses, which DOH denied.

Petitioner commenced this combined CPLR article 78 proceeding and declaratory judgment action seeking, among other things, an order annulling DOH’s determination, compelling respondents to pay the claims and finding the 2012 amendment unconstitutional on due process grounds. As is relevant here, Supreme Court granted petitioner’s application to annul DOH’s determination and directed DOH to pay the disputed claims, unless it could prove that any or all of such claims were inaccurate or illegitimate, as well as any remaining overburden expense reimbursements due to petitioner under Social Services Law § 368-a (1). Respondents appeal.

For the reasons set forth in Matter of County of St. Lawrence v Shah (supra), we reject respondents’ contention that Supreme Court erroneously awarded petitioner mandamus relief. We also conclude that, by failing to raise it as an affirmative defense in their answer, respondents waived their claim that petitioner lacked the capacity to assert a due process violation (see Matter of County of Chemung v Shah, 124 AD3d at 964; Matter of County of St. Lawrence v Shah, 124 AD3d at 91).

Lahtinen, Garry and Lynch, JJ., concur. Ordered that the judgment is affirmed, without costs.  