In the Matter of County of Chautauqua, Appellant,v.Nirav R. Shah,, et al., Respondents.BriefN.Y.September 7, 2016To be argued by: Christopher E. Buckey, Esq. 20 minutes requested Court of Zippeat5 of the tate of Rai pork In the Matter of the Application of COUNTY OF ST, LAWRENCE, Petitioner-Plaintiff Respondent, -against- APL-20I5-00089 NIRAV R. SHAH, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH AND THE NEW YORK STATE DEPARTMENT OF HEALTH, Respondents-Defendants-Appellants. Appellate Division, Third Department Case Nos.: 1518097, 518220, 518221 St. Lawrence County Index Nos.: 2013-140712, 2013-0140998, 2013-0141656 In the Matter of the Application of COUNTY OF CHEMUNG, Petitioner-PlaintiffiRespondent, -against- APL-2015-00088 NIRAV R. SHAH, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH AND THE NEW YORK STATE DEPARTMENT OF HEALTH, Respondents-Defendants-Appellants. Appellate Division, Third Department Case No.: 518222 Chemung County Index No.: 2013-1849 Continued on Next Page In the Matter of the Application of COUNTY OF CHAUTAUQUA, Petitioner-Plaintiff-Appellant, -against- APL-2015-00115 NIRAV R. SHAH, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH AND THE NEW YORK STATE DEPARTMENT OF HEALTH, Respondents-Defendants-Respondents. Appellate Division, Fourth Department Docket No.: CA14-00923 Chautauqua County Index No.: K1-2013-1266 In the Matter of the Application of COUNTY OF JEFFERSON, Petitioner-PlaintiffAppellant, -against- APL-2015-00116 NIRAV R. SHAH, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH AND THE NEW YORK STATE DEPARTMENT OF HEALTH, Respondents-Defendants-Respondents. Appellate Division, Fourth Department Docket No.: CA 14-00926 Jefferson County Index No.: 2013-1956 In the Matter of the Application of COUNTY OF ONEIDA, P etitioner-Plaintff:Appellant, -against- APL-2015-00140 NIRAV R. SHAH, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH AND THE NEW YORK STATE DEPARTMENT OF HEALTH, Respondents-Defendants-Respondents. Appellate Division, Fourth Department Docket No.: CA 14-010405 Oneida County Index No.: 2013-1788 Continued on Next Page In the Matter of the Application of COUNTY OF GENESEE, Petitioner-PlaintiffAppellant, -against- APL-2015-00141 NIRAV R. SHAH, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH AND THE NEW YORK STATE DEPARTMENT OF HEALTH, Respondents-Defendants-Respondents. Appellate Division, Fourth Department Docket No.: CA14-01041 Genesee County Index No.: 2013-63493 In the Matter of the Application of COUNTY OF CAYUGA, Petitioner-Plaintiff-Appellant, -against- APL-2015-00195 NIRAV R. SHAH, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH AND THE NEW YORK STATE DEPARTMENT OF HEALTH, Respondents-Defendants-Respondents. Appellate Division, Fourth Department Docket No,: 14-01886 Cayuga County Index No,: 2013-0000261 In the Matter of the Application of COUNTY OF MONROE, Petitioner-Plaintiff-Appellant, -against- APL-2015-00196 NIRAV R. SHAH, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH AND THE NEW YORK STATE DEPARTMENT OF HEALTH, Respondent-Defendants-Respondents. Appellate Division, Fourth Department Docket No.: CA14-01888 Monroe County Index No.: 2014-3162 Continued on Next Page BRIEF OF RESPONDENTS COUNTY OF ST. LAWRENCE AND COUNTY OF CHEMUNG AND APPELLANTS COUNTY OF CHAUTAUQUA, COUNTY OF JEFFERSON, COUNTY OF ONEIDA, COUNTY OF GENESEE, COUNTY OF CAYUGA, AND COUNTY OF MONROE Dated: September 15, 2015 WHITEMAN OSTERMAN & HANNA LLP Christopher E. Buckey, Esq., Of Counsel Robert S. Rosborough IV, Esq., Of Counsel One Commerce Plaza Albany, New York 12260 (518) 487-7600 (518) 487-7777 (facsimile) NANCY ROSE STOR1V1ER, P.C. Nancy Rose Stormer, Esq., Of Counsel Michael Bagge, Esq., Of Counsel 1325 Belle Avenue Utica, New York 13501 (315) 797-0110 Attorneys for County of St.Lawrence, County of Chemung, County of Chautauqua, County of Jefferson, County of Oneida, County of Genesee, County of Cayuga, and County of Monroe BOND SCHOENECK & KING, PLLC Raymond A. Meier, Esq., Of Counsel Co-Counsel for P etitioners-Plaintiffs-Appellants County of Oneida and County of Monroe 501 Main Street Utica, New York 13501 (315) 738-1223 TABLE OF CONTENTS TABLE OF AUTHORITIES iv JURISDICTIONAL STATEMENT xvi QUESTIONS PRESENTED PRELIMINARY STATEMENT 4 STATEMENT OF FACTS AND PROCEDURAL HISTORY 8 The Medicaid Cap Statute 11 Related Prior Litigation 12 Section 61 of the 2012 Executive Budget Law 16 Recent Overburden Claims Submitted 17 The Supreme Court Judgments 18 The Third Department's Order in St. Lawrence III 19 The Fourth Department's Order in County of Chautauqua 23 POINT I THE THIRD DEPARTMENT PROPERLY CONSTRUED SECTION 61 AS IMPOSING A FINAL LIMITATIONS PERIOD FOR THE SUBMISSION OF OVERBURDEN REIMBURSEMENT CLAIMS 26 A. Section 61 May Only be Construed as Imposing a Limitation Period for the Final Submission of Overburden Reimbursement Claims 28 B. The Third Department Properly Imposed a Six Month Grace Period for the Final Submission of Overburden Reimbursement Claims 36 POINT II THIS COURT SHOULD REVIEW THE MERITS OF THE ERRONEOUS FOURTH DEPARTMENT ORDERS 41 POINT III PETITIONERS MAY CHALLENGE SECTION 61 UNDER THE DUE PROCESS CLAUSE OF THE NEW YORK CONSTITUTION 50 A. The Federal Rule Regarding a Municipality's Ability to Assert Claims Against the State Only Applies to Federal Constitutional Claims 51 B. New York Treats a Municipality's Ability to Challenge a State Statute under the New York Constitution as an Issue of Capacity. 53 C. Municipalities are "Persons" under the Due Process Clause of the New York Constitution. 63 POINT IV IF THIS COURT ADOPTS THE FOURTH DEPARTMENT'S CONSTRUCTION OF SECTION 61, IT UNCONSTITUTIONALLY IMPAIRS PETITIONERS' VESTED RIGHTS TO REIMBURSEMENT 68 A. Section 61 Unconstitutionally Deprives Petitioners of their Vested Property Rights to Reimbursement. 69 B. Petitioners' Vested Rights to Overburden Reimbursement Are Not Subject to Retroactive Impairment 72 1. Section 61 is Manifestly Unfair 73 2. Petitioners Properly Relied on Their Clear Entitlement to Overburden Reimbursements Under Social Services Law § 368-a. 78 3. The Extent of Section 61's Retroactivity is Excessive 80 4. The Public Interest Requires Reimbursement of the Improperly Retained Overburden Payments to Petitioners. 85 POINT V PETITIONERS ARE ENTITLED TO MANDAMUS TO COMPEL RESPONDENTS TO SATISFY THEIR REIMBURSEMENT DUTY PURSUANT TO SOCIAL SERVICES LAW § 368-A 86 ii POINT VI RESPONDENTS ARE LIABLE FOR CONVERSION AND UNJUST ENRICHMENT AND THIS COURT SHOULD IMPOSE A CONSTRUCTIVE TRUST OVER THE UNPAID OVERBURDEN REIMBURSEMENT FUNDS 91 A. Respondents are Liable for Conversion. 93 B. Respondents are Unjustly Enriched at Petitioners' Expense. 95 C. The Fourth Department Erroneously Declined to Impose a Constructive Trust Over the Overburden Reimbursement Funds Owed to Petitioners.. 96 D. The Court of Claims Lacks Jurisdiction Over Petitioners' Tort Claims.... 99 CONCLUSION 105 iii TABLE OF AUTHORITIES State Cases 230 Park Ave. Assoc. v State of New York, 165 Misc 2d 920 (Ct Cl June 21, 1995) 92 Alliance of Am. Insurers v Chu, 77 NY2d 573 (1991) passim Alweis v Evans, 69 NY2d 199 (1987) 28, 30, 32 Andon v 302-304 Mott St. Assoc., 94 NY2d 740 (2000) 45 Ball v State of New York, 41 NY2d 617 (1977) 29 Beatty v Guggenheim Exploration Co., 225 NY 380 (1919) 97 Blue Cross of Cent. N.Y. v Wheeler, 93 AD2d 995 (4th Dept 1983) 95 Board of Coop. Educ. Servs. for Sole Supervisory Dist. of Rockland County v State of New York, 171 Misc 2d 585 (Sup Ct, Albany County 1996) 56, 65, 68 Board of Educ. of Cent. School Dist. No. I v Allen, 20 NY2d 109 (1967), affd 392 US 236 (1968) 55 Board of Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d 27 (1982) passim Boltja v Southside Hosp., 186 AD2d 774 (2d Dept 1992) 83 Brady v Ottaway Newspapers, 63 NY2d 1031 (1984) 45 Brennan's Bus Serv. v Brennan, 107 AD2d 858 (3d Dept 1985) 93 Brothers v Florence, 95 NY2d 290 (2000) passim iv Brown v City of New York, 60 NY2d 893 (1983) 45 Cass v State of New York, 58 NY2d 460 (1983) 103 Cimo v State of New York, 306 NY 143 (1953) 30 Cinquemani v Lazio, 37 AD3d 882 (3d Dept 2007) 97, 98 City of New York v State of New York, 86 NY2d 286 (1995) passim City of New York v State of New York, 46 AD3d 1168 (3d Dept 2007), lv denied 10 NY3d 705 (2008) 100, 101, 102 Colavito v New York Organ Donor Network, Inc., 8 NY3d 43 (2006) 93 Commercial Bank v Sherwood, 162 NY 310 (1900) 41 Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148 (1994) 53 Cooper v Morin, 49 NY2d 69 (1979) 48, 53 County of Nassau v Canavan, 1 NY3d 134 (2003) 41 County of Orange v Public Serv. Commn. of State of N. Y, 39 AD2d 311 (2d Dept 1972), affd 31 NY2d 843 (1972) 67 County of Rensselaer v Regan, 173 AD2d 37 (3d Dept 1991), affd 80 NY2d 988 (1992) passim Dorfman v Leidner, 76 NY2d 956 (1990) 81 Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340 (1982) 30 Empire State Ch. of Associated Bldrs. & Contrs., Inc. v Smith, 21 NY3d 309 (2013) 66 Enzien v Enzien, 96 AD3d 1136 (3d Dept 2012) 97 Feinberg v Saks & Co., 56 NY2d 206 (1982) 45 Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12 (2008) 46 Ford Motor Credit Co. v State of New York, 219 AD2d 202 (3d Dept 1996), lv denied 88 NY2d 813 (1996) 92 Forti v New York State Ethics Commn., 147 AD2d 269 (3d Dept 1989), affd 75 NY2d 596 (1990) 49 Franza v Olin, 73 AD3d 44 (4th Dept 2010) 70 Fry v Village of Tarrytown, 89 NY2d 714 (1997) 43, 46 Feuer v State of New York, 101 AD3d 1550 (3d Dept 2012) 100 Gilbert v Ackerman, 159 NY 118 (1899) 38, 77 Gulotta v State of New York, 228 AD2d 555 (2d Dept 1996), lv dismissed 88 NY2d 1053 (1996), lv denied 89 NY2d 811(1997) 56 H Kauffman & Sons Saddlery Co. v Miller, 298 NY 38 (1948) 36 Hastings v H. M Byllesby & Co., 293 NY 413 (1944) 38 Hecker v State of New York, 20 NY3d 1087 (2013) 49 Henness v Hunt, 272 AD2d 756 (3d Dept 2000) 97 Hernandez v Robles, 7 NY3d 338 (2006) 52 Herzog v Board of Educ. of Lawrence Union Free School Dist., 171 Misc 2d 22 (Sup Ct, Nassau County 1996) 57 Hoffman v State of New York, 42 AD3d 641 (3d Dept 2007) 101 vi James Sq. Assoc. LP v Mullen, 21 NY3d 233 (2013) 69, 72, 85 Kagen v Kagen, 21 NY2d 532 (1968) 104 Key Bank ofN.Y. v Grossi, 227 AD2d 841 (3d Dept 1996) 93 Klostermann v Cuomo, 61 NY2d 525 (1984) 86, 88 Land Man Realty, Inc. v Weichert, Inc., 94 AD3d 1221 (3d Dept 2012) 95 Lemle v Lemle, 92 AD3d 494 (1st Dept 2012) 94 Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143 (1983) 36 Madura v State of New York, 12 AD3d 759 (3d Dept 2004), lv denied 4 NY3d 704 (2005) 100 Matter of Albany Law School v New York State Off of Mental Retardation & Dev. Disabilities, 19 NY3d 106 (2012) 28 Matter of Bethpage Water Dist. v Daines, 67 AD3d 1088 (3d Dept 2009), lv denied 14 NY3d 707 (2010) 54, 57 Matter of Board of Educ. of Union-Endicott Cent. School Dist. v New York State Pub. Empl. Relations Bd., 233 AD2d 602 (3d Dept 1996) 66 Matter of Brusco v Braun, 84 NY2d 674 (1994) 90 Matter of Buttonow, 23 NY2d 385 (1968) 30 Matter of Chrysler Props. v Morris, 23 NY2d 515 (1969) 69 Matter of City of New York v Lawton, 128 AD2d 202 (3d Dept 1987) 59, 60, 62 Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186 (1988) 29 vii Matter of Couch v Perales, 78 NY2d 595 (1991) 48 Matter of County of Broome v Shah, 130 AD3d 1347 (3d Dept 2015) 22 Matter of County of Cayuga v Shah, 129 AD3d 1503 (4th Dept 2015), appeal and lv PU 26 Matter of County of Chautauqua v Shah, 126 AD3d 1317 (4th Dept 2015), appeal and lv PU passim Matter of County of Chemung v Shah, 124 AD3d 963 (3d Dept 2015), lv granted 25 NY3d 903 (2015), appeal PU 22, 24 Matter of County of Erie v Daines, 83 AD3d 1506 (4th Dept 2011) 15 Matter of County of Erie v Daines, 96 AD3d 1432 (4th Dept 2012) 15 Matter of County of Fulton v State of New York, 76 NY2d 675 (1990) 91 Matter of County of Genesee v Shah, 128 AD3d 1380 (4th Dept 2015), appeal and lv PU 26 Matter of County of Herkimer v Daines, 60 AD3d 1456 (4th Dept 2009), lv denied 63 AD3d 1672 (4th Dept 2009), lv denied 13 NY3d 707 (2009) passim Matter of County of Herkimer v Daines, 83 AD3d 1510 (4th Dept 2011) 15 Matter of County of Jefferson v Shah, 126 AD3d 1322 (4th Dept 2015), appeal and lv PU 25 Matter of County of Monroe v Shah, 129 AD3d 1505 (4th Dept 2015), appeal and lv PU 26 Matter of County of Nassau v State of New York, 100 AD3d 1052 (3d Dept 2012), lv dismissed 20 NY3d 1092 (2013) 55 'OH Matter of County of Niagara v Daines, 60 AD3d 1460 (4th Dept 2009) 15 Matter of County ofNiagara v Daines, 79 AD3d 1702 (4th Dept 2010), lv denied 82 AD3d 1719 (4th Dept 2011), lv denied 17 NY3d 703 (2011) 13, 15 Matter of County ofNiagara v Daines, 91 AD3d 1288 (4th Dept 2012), lv denied 94 AD3d 1481 (4th Dept 2012) 15, 34, 78 Matter of County ofNiagara v Shah, 122 AD3d 1240 (4th Dept 2014) 34 Matter of County of Oneida v Shah, 128 AD3d 1381 (4th Dept 2015), appeal and iv PU 26 Matter of County of Oswego v Travis, 16 AD3d 733 (3d Dept 2005) 58 Matter of County of St. Lawrence v Daines, 81 AD3d 212 (3d Dept 2011) , lv denied 17 NY3d 703 (2011) passim Matter of County of St. Lawrence v Shah, 95 AD3d 1548 (3d Dept 2012) passim Matter of County of St. Lawrence v Shah, 124 AD3d 88 (3d Dept 2014), lv denied AD3d (3d Dept Jan 23, 2015), lv granted 25 NY3d 903 (2015), appeal PU passim Matter of Crespo, 123 Misc 2d 862 (Sup Ct, New York County 1984) 65 Matter of Graziano v County of Albany, 3 NY3d 475 (2004) 42, 54 Matter of Gross v Perales, 72 NY2d 231 (1988) 99, 100, 104, 105 Matter of Hodes v Axelrod, 70 NY2d 364 (1987) 70, 72 Matter of Island Waste Servs., Ltd. v Tax Appeals Trib. of State of N.Y, 77 AD3d 1080 (3d Dept 2010), lv denied 16 NY3d 712 (2011) 83 ix Matter of Jeter v Ellenville Cent, School Dist., 41 NY2d 283 (1977) 25, 55, 56, 63 Matter of Krauskopf v Perales , 139 AD2d 147 (3d Dept 1988), affd 74 NY2d 730 (1989) 26, 50, 62 Matter of Lopez v Evans, 25 NY3d 199 (2015) 41 Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 66 NY2d 298 (1985) 30 Matter of Markham v Comstock, 272 AD2d 971 (4th Dept 2000), appeal dismissed 95 NY2d 886 (2000), cent denied 531 US 1079 (2001) 104 Matter of Monroe County Pub. School Dists. v Zyra, 51 AD3d 125 (4th Dept 2008), lv denied 52 AD3d 1293 (4th Dept 2008) 34 Matter of Natural Resources Defense Council v New York City Dept. of Sanitation, 83 NY2d 215 (1994) 29 Matter of Paver & Wildfoerster (Catholic High School Assn), 38 NY2d 669 (1976) 33 Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293 (1961) 83 Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753 (1991) 101 Matter of Seitelman v Lavine, 36 NY2d 165 (1975) 49 Matter of Thomas v Bethlehem Steel Corp., 63 NY2d 150 (1984) 39, 82 Matter of Tiffany, 179 NY 455 (1904) 29 Matter of Town of Brookhaven v New York State Bd. of Equalization & Assessment, 88 NY2d 354 (1996) 28 Matter of Town of Middletown v State Bd. of Real Prop. Servs., 272 AD2d 657 (3d Dept 2000) 66 Matter of Town of Moreau v County of Saratoga, 142 AD2d 864 (3d Dept 1988) 59, 60 Matter of Town of Wallkill v New York State Bd. of Real Prop. Servs., 274 AD2d 856 (3d Dept 2000) 66 Matter of Von Bulow, 63 NY2d 221 (1984) 45 Meese v Miller, 79 AD2d 237 (4th Dept 1981) 94 Moak v Raynor, 28 AD3d 900 (3d Dept 2006) 97 Nastasi v Nastasi, 26 AD3d 32 (2d Dept 2005) 97 New York Blue Line Council, Inc. v Adirondack Park Agency, 86 AD3d 756 (3d Dept 2011), appeal dismissed 17 NY3d 947 (2011), lv denied 18 NY3d 806 (2012) 54 O'Neil v State of New York, 223 NY 40 (1918) 79 Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670 (3d Dept 1997) 100 Parsa v State of New York, 64 NY2d 143 (1984) 92 People ex rel. Francis v Common Council of City of Troy, 78 NY 33 (1879) 89 People ex rel. Rodgers v Coler, 166 NY 1 (1901) 65, 89 People v Ahearn, 196 NY 221 (1909) 41 People v Cohen, 245 NY 419 (1927) 38 People v Ingersoll, 58 NY 1 29 (1874) 65 xi People v Santorelli, 80 NY2d 875 (1992) Pines v State of New York, 115 AD3d 80 (2d Dept 2014), 30 appeal dismissed 23 NY3d 982 (2014) 29, 30 Purcell v Regan, 126 AD2d 849 (3d Dept 1987), lv denied 69 NY2d 613 (1987) 60, 61 Robert R. Gibbs, Inc. v State of New York, 70 AD2d 750 (3d Dept 1979) 92 Roman Catholic Diocese of Albany, NY. v New York State Workers' Compensation Bd., 96 AD3d 1288 (3d Dept 2012) 37 Safety Group No. 194 v State of New York, Claim No. 101826, 2001 WL 939747 (Ct Cl Apr. 11, 2001), affd sub nom. Safety Group No. 194--New York State Sheet Metal Roofing & A.C. Contractors Assn. v State of New York, 298 AD2d 785 (3d Dept 2002) 101 Sharp v Kosmalski, 40 NY2d 119 (1976) 96 Simonds v Simonds, 45 NY2d 233 (1978) 96, 97, 103 Small v Lorillard Tobacco Co., 94 NY2d 43 (1999) 45 Spahn v Julian Messner, 1983 McKinney's Session Laws of NY at 2808 35 Inc., 21 NY2d 124 (1967) 31 State of New York v International Asset Recovery Corp., 56 AD3d 849 (3d Dept 2008) 95 State of New York v Seventh Regiment Fund, Inc., 98 NY2d 249 (2002) 93 Thomas v Thomas, 70 AD3d 588 (1st Dept 2010) 97 Thrasher v United States Liab. Ins. Co., 19 NY2d 159 (1967) 104 xii Thyroff v Nationwide Mut. Ins. Co., 8 NY3d 283 (2007) 93 Thys v Fortis Securities LLC, 74 AD3d 546 (1st Dept 2010) 94 Town of Black Brook v State of New York, 41 NY2d 486 (1977) 55, 66 Town of Delhi v Telian, 119 AD3d 1049 (3d Dept 2014) 58, 59 Town of Newburgh v Chumard, 271 AD2d 597 (2d Dept 2000), appeal dismissed 95 NY2d 850 (2000) 67 Town of Oyster Bay v Kirkland, 81 AD3d 812 (2d Dept 2011), affd 19 NY3d 1035 (2012) 66 Town of Walton v Adair, 96 App Div 75 (3d Dept 1904) 67 Federal Cases City of E. St. Louis v Circuit Ct. for Twentieth Jud. Circuit, St. Clair County, 986 F2d 1142 (7th Cir 1993) 43, 52 City of New Rochelle v Town of Mamaroneck, 111 F Supp 2d 353 (SD NY 2000) 43 City of Newark v State of New Jersey, 262 US 192 (1923) 51 City of S. Lake Tahoe v California Tahoe Regional Planning Agency, 625 F2d 231 (9th Cir 1980), cent denied 449 US 1039 (1980) 44, 52 City of Trenton v State of New Jersey, 262 US 182 (1923) 51 Hunter v City of Pittsburgh, 207 US 161 (1907) 51 In re Gucci, 126 F3d 380 (2d Cir 1997) 44 Obergefell v Hodges, 135 5 Ct 2584 (June 26, 2015) 52 Rhem v Malcolm, 507 F2d 333 (2d Cir 1974) Terry v Anderson, 95 US 628 (1877) Williams v Mayor & City Council of Baltimore, 289 US 36 (1933) 51, 79 36 52, 53 Statutes CPLR 3211(a)(3), (e) 57 CPLR 5501(b) 41, 49 CPLR 5601(b)(1) 26 L 2005, eh 58, part C, § 1 11 L 2005, ch 58, part C, § 1(b)-(d) 11 L 2005, ch 58, part C, § 1(c) 81 L 2010, ch 109, part B, § 24 14 L 2012, ch 56, part D, § 65(k) 33, 34 McKinney's Cons Laws of NY, Book 1, Statutes § 150 31 Social Services Law § 368-a(1)(h) 2, 15, 20 Social Services Law § 368-a(1)(h)(i) passim xiv Regulations 18 NYCRR § 635.1(b) 98 Constitutional Provisions New York Constitution, Article I, § 6 41 New York Constitution, Article IX, §§ 1, 2 68 Treatises 2A Carmody-Wait 2d § 13:11 67 Other Authorities Citizens Budget Commission, A Poor Way for Medicaid: Why New York Should Eliminate Local Funding for Medicaid at 5 [Dec. 2011], available at http ://www.ebeny org/sites/default/files/REPORT___Medicaid_12122012 .pdf ... 11 Governor's Mem approving L 1983, ch 816, 1983 McKinney's Session Laws of NY at 2808 35 Merriam-Webster's Collegiate Dictionary, at 228 (11th ed 2004) 81 XV JURISDICTIONAL STATEMENT By notices of appeal served on April 17, 2015, May 18, 2015, May 28, 2015, and July 16, 2015, Petitioners-Plaintiffs-Appellants County of Chautauqua, County of Jefferson, County of Oneida, County of Genesee, County of Cayuga, and County of Monroe appealed to this Court, pursuant to CPLR 5601(b)(1), from the orders of the Appellate Division, Fourth Department entered March 20, 2015, May 1, 2015, and June 12, 2015. The Appellate Division orders finally determine the proceedings and directly involve the construction of the New York Constitution. This Court therefore has jurisdiction over these appeals under CPLR 5601(b)(1). The issues presented are preserved. Petitioners-Plaintiffs-Appellants asserted in Supreme Court and in its Appellate Division briefs that Section 61 of part D of chapter 56 of the Laws of 2012 retroactively extinguished Petitioners' vested rights to overburden reimbursement in violation of the Due Process Clause of the New York Constitution and that Petitioners have capacity to challenge Section 61 on due process grounds (County of Chautauqua R 51-54; County of Chautauqua App Div Brf, at 13-33). These are pure questions of law that are reviewable by this Court (see Point II, infra). xvi QUESTIONS PRESENTED 1. May Section 61 of chapter 56 of part D of the Laws of 2012 ("Section 61") be construed to avoid the unconstitutional impairment of Petitioners' vested rights to overburden reimbursement? The Appellate Division, Third Department held that Section 61 should be construed as imposing a statute of limitations for the final submission of overburden reimbursement claims in order to preserve its constitutionality. The Appellate Division, Fourth Department did not address whether Section 61 may be construed to avoid the retroactive impairment of Petitioners' vested rights to overburden reimbursement. 2. May a New York court consider Petitioners' challenge to the constitutionality of Section 61 under the Due Process Clause of the New York Constitution? Yes. Respondents waived their defense that Petitioners lack capacity to challenge the Constitutionality of Section 61 by failing to raise it in their answer or by motion before the trial courts. Further, even absent Respondents' waiver, Petitioners' claims fall within the proprietary interest exception to the lack of capacity doctrine under this Court's decision in City of New York v State of New York (86 NY2d 286 [1995]). The Appellate Division, Third Department held that 1 Petitioners may challenge the constitutionality of Section 61 under the Due Process Clause of the New York Constitution because Respondents waived the defense that Petitioners lack capacity to challenge Section 61. The Appellate Division, Fourth Department held that, although Respondents waived the defense that Petitioners lack capacity to challenge Section 61 on due process grounds, Petitioners are not "persons" under the Due Process Clause of the New York Constitution and therefore cannot challenge Section 61. 3. If Section 61 is not construed as a statute of limitations, as the Appellate Division, Third Department held, does Section 61 unconstitutionally impair Petitioners' vested rights to overburden reimbursement? The trial courts held that Section 61 retroactively extinguishes Petitioners' vested rights to overburden reimbursement, and should be declared unconstitutional and void. The Appellate Division, Third and Fourth Departments did not reach this question. 4. May Respondents be compelled to satisfy their unambiguous statutory duty under Social Services Law § 368-41)(h) to reimburse Petitioners for 100 percent of the overburden local share payments taken prior to January 1, 2006? 2 The Appellate Division, Third Department held the Section 61 did not repeal Respondents' mandatory and ministerial reimbursement duty under Social Services Law § 368-a(1)(h)(i) and, thus, Petitioners were entitled to mandamus compelling Respondents to satisfy their reimbursement duty. The Appellate Division, Fourth Department held that Section 61 implicitly repealed Respondents' mandatory reimbursement duty under Social Services Law § 368-a and, thus, mandamus did not lie to compel Respondents to identify and pay Petitioners the total outstanding overburden reimbursement liability. 5. Are Respondents subject to liability for conversion, unjust enrichment, and/or constructive trust claims by counties where Respondents misappropriate funds that they are statutorily obligated to reimburse to the counties? The Appellate Division, Fourth Department, relying on the decision of Supreme Court, Jefferson County, held that Respondents are not subject to liability for conversion, unjust enrichment, and/or constructive trust claims. 3 PRELIMINARY STATEMENT Petitioners-Plaintiffs County of St. Lawrence, County of Chemung, County of Chautauqua, County of Jefferson, County of Genesee, County of Oneida, County of Cayuga, and County of Monroe (collectively, "Petitioners") respectfully submit this brief (1) in support of their appeals from the orders of the Appellate Division, Fourth Department, dated March 20, 2015, May 1, 2015, and June 12, 2015, and (2) in opposition to the appeals of Respondents-Defendants Nirav R. Shah, M.D., M.P.H., as Commissioner of the New York State Department of Health, and the New York State Department of Health (collectively, "Respondents"). New York is unique. It is the only State in the country that obligates its counties to bear a significant portion of the State's overwhelming Medicaid burden. The Medicaid burden borne by the counties expanded as a result of the statewide deinstitutionalization in the 1970's. Recognizing the catastrophic impact of this burden on the counties, the Legislature adopted measures to hold the counties harmless from the expenses incurred in treating the deinstitutionalized patients. Thus, since 1984, the State has been required to reimburse the counties, under Social Services Law § 368-a, for the Medicaid local share payments that were taken by Respondents for the care of certain mentally disabled indigents, commonly known as "overburden" reimbursement. 4 Respondents admit that it was solely their obligation to calculate the overburden reimbursements owed to the counties and reimburse the funds, without the counties taking any action and that Respondents controlled the databases in which records of the overburden patients were maintained. Yet, for at least the last twenty years, Respondents have patently failed or simply refused to calculate and pay the total reimbursement liability, which consists solely of county tax revenues, in accordance with the clear statutory direction. Instead, Respondents have ignored their statutory hold harmless obligation and repeatedly sought to forestall payment of their reimbursement liability, relying on misconstructions of legislative amendments to the Medicaid scheme and forcing the counties to seek to collect the reimbursements through dozens of collection actions. In each case, Respondents' attempts to avoid their unambiguous reimbursement obligation failed, and the courts compelled Respondents to pay. When all else failed, Respondents drafted and convinced the Legislature to enact Section 61, a statute that purports to extinguish Respondents' reimbursement obligations immediately upon its effective date, and then began to deny the counties' reimbursement claims based solely on Section 61. As the Third Department held in Matter of County of St. Lawrence v Shah (124 AD3d 88 [3d Dept 2014] ["St. Lawrence MTh lv denied AD3d [3d Dept Jan 23, 2015], lv granted 25 NY3d 903 [2015], appeal PU), however, Section 61 cannot be read to 5 extinguish the counties' entitlement to reimbursement under Social Services Law § 368-a without first providing the counties a short limitations period after the effective date of Section 61 for the final submission of reimbursement claims. As a matter of statutory interpretation, these cases are straightforward and were properly resolved by the Third Department below. The State, however, has turned these simple collection actions into a watershed event for New York municipalities. Once again without a defense to avoid their overburden reimbursement obligation, Respondents sought to use these proceedings to upset New York's longstanding rule that municipalities, like all other litigants, are persons entitled to protection under the Due Process Clause of the New York Constitution, Indeed, Respondents ignore this Court's dispositive decisions in City of New York v State of New York (86 NY2d 286 [1995]) and Board of Educ., Levittown Union Free School Dist. v Nyquist (57 NY2d 27 [1982]), where this Court made clear that municipalities are in fact "persons" capable of challenging state legislation on due process grounds when they fit within one of the limited common law exceptions to the general rule of municipal incapacity. Nevertheless, the Fourth Department, relying exclusively on inapplicable federal precedent and an unsupported interpretation of this Court's holdings, adopted Respondents' argument and held, for the first time under New York law, 6 that a municipality is not a "person" under the Due Process Clause of the New York Constitution. Although the federal courts have held that municipalities may not assert due process rights under the Fourteenth Amendment to the United States Constitution, the United States Supreme Court has made clear that matters of state constitutional law are reserved to the states. As this Court recognized in City of New York, and contrary to the Fourth Department's holding, New York has departed from this federal rule with respect to municipal due process and equal protection claims under the New York Constitution. New York is indeed unique; under New York law, courts treat a municipality's right to assert due process claims under the New York Constitution as a matter of capacity that can be waived if not raised by answer or motion. Because Respondents waived their capacity defense by failing to raise it at nisi prius, and the counties are "persons" that may assert due process claims under the New York Constitution, the Fourth Department's holdings cannot stand. The Fourth Department's decisions have not only overruled decades of New York precedent preserving municipal rights under the New York Constitution, but have fundamentally altered the relationship between the State and its subdivisions. Under the Fourth Department's rationale that municipalities are not "persons," municipalities are nothing more than agents of the State subject to the State's intervention in all local matters. The New York Constitution does not countenance 7 such a result. Therefore, as demonstrated fully below, the Third Department orders should be affirmed and the Fourth Department orders reversed. STATEMENT OF FACTS AND PROCEDURAL HISTORY New York's Medical Assistance program makes Petitioners, and other counties throughout the state, responsible for providing Medical Assistance to eligible patients within their counties (Record on Appeal in County of Chautauqua v Shah ["R"} 37-38).1 New York originally required the counties to pay fifty percent of all Medical Assistance costs not covered by federal payments, commonly known as the counties' "local share" (R 38-39). However, in the 1980s, the Legislature recognized the significant burden that this policy imposed on the counties as a result of the widespread deinstitutionalization of individuals who had previously been residents of State-run institutions (id.; see R 485). To mitigate this burden, the Legislature eliminated the counties' obligation to pay a local share for 1 As the records involved in these appeals are very similar, unless otherwise noted, all record citations are to the Record on Appeal in County of Chautauqua v Shah. Citations to the Records on Appeal in County of St. Lawrence v Shah are referred to as "St. Lawrence Rl" (for Appellate Division case number 518097, Supreme Court index number 140712), "St. Lawrence R2" (for Appellate Division case number 518220, Supreme Court index number 140998), and "St. Lawrence R3" (for Appellate Division case number 518221, Supreme Court index number 141656). Citations to the Record on Appeal in County of Chemung v Shah are referred to as "Chemung R." Citations to the Record on Appeal in County of Oneida v Shah are referred to as "Oneida R." Citations to the Record on Appeal in County of Jefferson v Shah are referred to as "Jefferson R." Citations to the Record on Appeal in County of Cayuga v Shah are referred to as "Cayuga R." Citations to the Record on Appeal in County of Monroe v Shah are referred to as "Monroe R." Citations to the Record on Appeal in County of Genesee v Shah are referred to as "Genesee R." 8 Medical Assistance provided to certain indigent, mentally disabled persons (R 39). The Legislature amended Social Services Law § 368-a to add subdivision (1)(h), which provides counties with full reimbursement for their local shares for this category of Medical Assistance recipients, known as "overburden" recipients (id.; see R 485-486). Following the amendment, Respondents continued to automatically collect full local shares from Petitioners on a weekly basis, and deposited the shares into a special bank account maintained by the State Comptroller (R 436). Respondents were then solely responsible for determining the portion of the counties' local share that was attributable to medical expenses the counties paid on behalf of overburden eligible individuals, and for reimbursing those funds to the counties on a quarterly basis (see R 437-438, 449, 495, 499-502, 506-507). Respondents relied on a State-owned computer system to identify and code the overburden-eligible individuals (R 437-438). In the mid-1990s, Respondents improperly changed the codes on the State- owned computer system for certain overburden recipients (R 488-503). As a result, Petitioners were incorrectly charged for overburden-related expenses (id.; see Matter of County of St. Lawrence v Daines, 81 AD3d 212, 217 [3d Dept 2011] ["St. Lawrence 1"], lv denied 17 NY3d 703 [2011]). Respondents provided no notice to Petitioners that certain individuals either had not been properly coded or 9 had been decoded (R 438-441, 458, 499-501). Respondents also destroyed records that would have assisted in identifying the uncoded overburden recipients (R 503), and abjectly refused to turn over other relevant documents (R 135-190, 503- 504). Absent notice from Respondents or disclosure of records regarding the improper coding, it was impossible for Petitioners and the counties to identify the unpaid overburden reimbursements they were owed (R 499-500). In April 2005, Respondents took yet another step to avoid their unambiguous overburden reimbursement obligation. Without any notice to the counties, Respondents summarily ordered the Office of Temporary and Disability Assistance ("OTDA") to suspend any and all processing or payment of overburden reimbursements to the counties (R 41, 490). Thus, even if Petitioners and the other counties knew of the unpaid overburden reimbursement (which they did not) and could have identified any of the unpaid overburden reimbursement (which they could not), there would have been no means for them to recover the unpaid overburden reimbursement from Respondents. In sum, Respondents have refused to voluntarily pay a single overburden reimbursement claim to any county since at least March 2005, if not earlier (as suggested by Respondents' litigation history and the record evidence) (R 490-492, 511-513, 842-845). 10 The Medicaid Cap Statute In 2005, the Legislature adopted a "cap" methodology to limit, in subsequent calendar years, the total amount of Medical Assistance expenses that the counties were required to pay to Medical Assistance-eligible patients in the first instance (see L 2005, ch 58, part C, § 1 [hereinafter, the "Medicaid Cap Statute"]). The basic principle of this cap methodology was to use 2005 as a base year for a county's total Medical Assistance expenditures, and to then guarantee that future expenditures did not increase unreasonably above that amount (see id. § l[b]-[d]). The long overdue reform of the Medicaid methodology has done little to ease the crushing burden of Medicaid spending on the counties. In 2012, for example, New York's counties were projected to contribute more than 7.1 billion to the state's Medicaid spending (Citizens Budget Commission, A Poor Way for Medicaid: Why New York Should Eliminate Local Funding for Medicaid at 5 [Dec. 2011], available at http : //www. cbcny org/sites/de fault/fi le s/REPMedicaid_ 12122012 .pdf). The burden borne by New York's counties is unique of the 27 other states that require any local funding for Medicaid spending, the vast majority limit the local shares to administrative expenses (id. at 10). Overall, the proportionate local share contribution required by New York, even after implementation of the Medicaid Cap, dwarfs the local share contributions required by any other state (id). In 2008, 11 New York required counties to contribute $6.5 billion to Medicaid spending, which was approximately 16% of the total Medicaid spending in New York (id.). California, the state witia the second largest local share contribution in 2008, required $1 billion in local share contributions to Medicaid spending, or roughly 2.5% of the state's total Medicaid spending (id.). Notably, the Medicaid Cap Statute incorporated the overburden reimbursement obligation prospectively, effective January 1, 2006, while leaving Respondents' obligation to reimburse for pre-2006 local share payments unchanged retrospectively (R 70-72; see St. Lawrence I, 81 AD3d at 214-215; Matter of County of Herkimer v Daines, 60 AD3d 1456, 1457 [4th Dept 2009], lv denied 63 AD3d 1672 [4th Dept 2009], lv denied 13 1\-Y3d 707 [2009]). As such, after adoption of the Medicaid Cap, Respondents remained liable to reimburse the counties 100% of their local shares paid prior to January 1, 2006 on behalf of overburden-qualifying mentally disabled persons (R 70). Related Prior Litigation In 2006, counties submitted claims for overburden reimbursement, which were arbitrarily denied by Respondents, forcing those counties to challenge Respondents' denial of reimbursement in a series of expensive lawsuits (R 71-73). In those litigations, Respondents initially argued that the counties' claims for overburden reimbursement were barred by the Medicaid Cap Statute (R 71). The 12 Fourth Department properly rejected that argument, holding that the Legislature "did not intend [the Medicaid Cap Statute] to be retroactively applied" (County of Herkimer v Dairies, 60 AD3d at 1457). Within days of the Fourth Department's decision, Respondents began denying claims on timeliness grounds, and also attempted to supplement their prior denials to include the timeliness argument (see Matter of County of Niagara v Dairies, 79 AD3d 1702, 1703-1705 [4th Dept 2010], lv denied 82 AD3d 1719 [4th Dept 2011], lv denied 17 NY3d 703 [2011]; St. Lawrence I, 81 AD3d at 216). The Third and Fourth Departments rejected both of these arguments, holding that the Medicaid Cap Statute only applies prospectively, and that the claims were not untimely (St. Lawrence I, 81 AD3d at 216-217; see also County of Niagara v Dairies, 79 AD3d at 1703, 1705). Notably, in St. Lawrence I, Respondents made, and the Third Department rejected, the identical argument referenced by Respondents in this appeal; namely, Petitioners should have submitted the otherwise "stale" reimbursement claims earlier based upon the limited pro forma statistical reports allegedly provided by Respondents (compare R 1021-1023 with R 439-441). In 2010, while these first two rounds of litigation were pending, the Legislature amended the Medicaid Cap Statute to provide that "the state/local social services district relative percentages of the non-federal share of medical assistance expenditures incurred prior to January 1, 2006 shall not be subject to 13 adjustment on and after July 1, 2006" (L 2010, ch 109, part B, § 24). In effect, this amendment locked in a county's percentage share for the cost of Medicaid services at the figure calculated under the cap (R 73). In or around 2010, the counties again submitted overburden reimbursement claims to Respondents (R 73-74). Respondents denied those reimbursement claims, this time on the basis that the 2010 Amendment extinguished the counties' right to reimbursement (id.). As a result, the counties were forced to commence litigation to compel Respondents to make the reimbursements. After many courts throughout the state once again rejected Respondents' arguments, the Third Department in St. Lawrence II rejected Respondents' reliance on the 2010 Amendment (see Matter of County of St. Lawrence v Shah, 95 AD3d 1548, 1553-1554 [3d Dept 2012] ["St. Lawrence ITT. In its decision, the Third Department cogently explained why Respondents could not retroactively avoid their statutory reimbursement obligation to the counties under Social Services Law § 368-a: [I]t has been the state's statutory obligation to pay the county share for Medicaid expenditures incurred in providing medical services to certain mentally disabled individuals. While the state, and not the county, has been obligated to pay for these medical services, it has continued to charge petitioner for these expenses and used these funds to satisfy its obligations under this statute. Since the state was never entitled to these funds, the 2010 amendment, even if found to apply to overburden expenditures, cannot serve to transform these county funds into state property and relieve the state of the legal obligation to return them. . . This Court has previously held that "prior to 2006, upon payment to DOH for services provided to overburdened patients for which no local share was owing, petitioner's right to 14 reimbursement for such expenditures accrued" (Matter of St. Lawrence County v. Daines, 81 A.D,3d at 216, 917 N.Y.S.2d 330). Thus, the 2010 amendment, even if it was intended by the Legislature to repeal Social Services Law § 368—a (1)(h), cannot serve to relieve the state of its obligation to refund the counties for these expenditures made prior to January 1, 2006 (id. [emphasis added]). The Fourth Department similarly rejected Respondents' arguments (see Matter of County of Niagara v Daines, 91 AD3d 1288, 1289 [4th Dept 2012], lv denied 94 AD3d 1481 [4th Dept 2012]). Nevertheless, Respondents continued to reject claims on the basis of the 2010 Amendment until after the Third Department issued its decision in St. Lawrence II (95 AD3d 1548 [3d Dept May 17, 2012]) (R 504-505, 512-514, 843-844). The refusal by Respondents to reimburse the counties from 2006 to 2012 resulted in nine appellate decisions compelling Respondents to honor their statutory duty (see Matter of County of St. Lawrence v Shah, 95 AD3d 1548 [3d Dept 2012]; Matter of County of Niagara v Daines, 91 AD3d 1288 [4th Dept 2012]; Matter of County of Erie v Daines, 96 AD3d 1432 [4th Dept 2012]; Matter of County of Herkimer v Daines, 83 AD3d 1510 [4th Dept 2011]; Matter of County of Erie v Daines, 83 AD3d 1506 [4th Dept 2011]; Matter of County of St. Lawrence v Daines, 81 AD3d 212 [3d Dept 2011]; Matter of County of Niagara v Daines, 79 AD3d 1702 [4th Dept 2010]; Matter of County of Herkimer v Daines, 60 AD3d 1456 [4th Dept 2009]; Matter of County of Niagara v Daines, 60 AD3d 1460 [4th Dept 2009]). As here, in the nine prior appellate cases, Respondents did 15 not dispute that the State had failed to reimburse the counties for overburden local share payments improperly taken prior to 2006. Notably, despite these decisions directing Respondents to reimburse the counties for certain overburden recipients, Respondents have, to date, abjectly failed to correct the coding for these recipients, in apparent defiance of a number of court orders (R 495-502). Respondents' intentional refusal to properly code individuals to date has allowed and will continue to allow them to reap enormous windfalls (beyond the admitted windfall of refusing to reimburse for pre-2006 payments at issue in this and prior litigations) at the expense of Petitioners and the other counties (R 506-509) by artificially inflating the counties' Medicaid caps from 2005 to date. Section 61 of the 2012 Executive Budget Law After all of Respondents' prior legal arguments to avoid the State's undisputed debt to the counties failed, Respondents resorted to a new tactic— asking the Legislature to pass a retroactive statute to permanently extinguish the counties' vested rights to reimbursement, despite the Third Department's express warning in St. Lawrence II that Respondents could not do so (R 43-45). Section 61 expressly provides that "[notwithstanding the provisions of section 368-a of the social services law or any other contrary provision of law, no reimbursement shall be made for social services districts' claims submitted on and after tie effective 16 date of this paragraph, for district expenditures incurred prior to January 1, 2006" (R 299). Section 61 was introduced to the Legislature on January 17, 2012 and became effective upon its enactment on April 1, 2012 (Resps' App Div Brf in County of Chautauqua ["Resps' Br." 1, at 9-10;2 see also R 299, 447). At the time Section 61 was introduced, therefore, Respondents still were rejecting overburden claims based upon the 2010 Amendment (R 447, 844-845). No grace or limitations period was afforded to the counties to allow them to identify and seek unpaid overburden reimbursement (R 45, 299). Recent Overburden Claims Submitted Between October 2012 and March 2014, Petitioners submitted claims for overburden reimbursement to Respondents (St. Lawrence R1 36; St. Lawrence R2 30; St. Lawrence R3 42; Chemung R 67; Oneida R 318-328; Jefferson R 104; Chautauqua R 327-336; Cayuga R 197-202; Monroe R 1015-1016; Genesee R 41, 202-206). By nearly identical form letters, Respondents denied all of Petitioners' claims in their entirety, based solely on the retroactive application of Section 61 (St. Lawrence R1 37; St. Lawrence R2 30; St. Lawrence R3 42; Chemung R 67-68; Oneida R 330-331; Jefferson R 104; Chautauqua R 339-340; Cayuga R 203-204; 2 Respondents submitted very similar briefs to the Appellate Division in each of these appeals. As a result, unless otherwise noted, all citations to Respondents' Appellate Division brief are to Respondents' brief in County of Chautauqua v Shah. 17 Monroe R 229-232, 1016; Genesee R 207-208). Thus, Respondents' actions once again left Petitioners with no alternative but to challenge the deprivation of their reimbursement rights in the courts. The Supreme Court Judgments From July 31, 2013 to June 24, 2014, the Supreme Courts below in St. Lawrence, Chemung, Oneida, Jefferson, Chautauqua, Cayuga, Monroe, and Genesee Counties held that Section 61 unconstitutionally extinguished Petitioners' vested rights to overburden reimbursement, and granted Petitioners orders annulling Respondents' denials of their claims for overburden reimbursements (see R 20-27; St. Lawrence R1 13; St. Lawrence R2 8-9; St. Lawrence R3 11; Chemung R 9-11; Jefferson R 51-52; Oneida R 11-16; Genesee R 9-19; Cayuga R 8-16; Monroe R 18-21). Many of these courts also granted Petitioners orders in the nature of mandamus directing Respondents to review, verify, and pay any remaining overburden reimbursements due to those Petitioners under Social Services Law § 368-a (see R 20-27; St. Lawrence R3 11; Chemung R 11; Jefferson R 51-52; Oneida R 11-16; Genesee R 9-19). Supreme Court, Jefferson County, in dicta, denied Petitioner Jefferson County's claims for unjust enrichment, conversion, and constructive trust on the sole ground that those claims could not be maintained against "the State of New York or a State agency" (Jefferson R 80-83). 18 Respondents appealed from the Supreme Court orders (St. Lawrence R1 4; St. Lawrence R2 4; St. Lawrence R3 4; R 4-7; Chemung 4-5; Jefferson R 5-8; Oneida R 5-7; Genesee R 4-5; Cayuga R 4-6; Monroe R 4-5). Petitioners Chautauqua County, Jefferson County, and Monroe County also cross-appealed from the Supreme Court orders (R 4-7; Jefferson R 5-8; Monroe R 9-10). The Third Department's Order in St Lawrence III In related appeals before the Appellate Division, Third Department concerning the counties' vested rights to overburden reimbursement, the Third Department (Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.), on November 26, 2014, declared Section 61 constitutional "with a grace period of six months from the date of this Court's decision for social services districts to submit claims to respondent Department of Health for reimbursement of overburden expenditures incurred prior to 2006" (St. Lawrence III, 124 AD3d at 94). The Third Department's imposition of a due process grace period for the final submission of overburden reimbursement claims applies to all counties throughout the State, including Petitioners, and sets an end date by which the State's unpaid overburden liability will be certain (see id. at 93). The Court rejected Respondents' attempt to argue, for the first time on appeal, that Petitioner St. Lawrence County could not assert a due process challenge to Section 61 merely because it is a subdivision of the State (see id. at 19 91). The Court held that Respondents' "assertion that petitioner, as a political subdivision of the state, can have no due process claim against its creator, [was] essentially a challenge to petitioner's capacity," and that the "argument was waived by respondents' failure to raise it as a defense in their answer or a pre- answer motion to dismiss" (id. [citation omitted]). Turning to the merits, the Third Department held that Section 61 did not impliedly repeal Social Services Law § 368-41)(h) and "retroactively extinguish petitioner's vested right to reimbursement" because both provisions can be read together to achieve the legislative purposes of each (id. at 91). Specifically, the Court held, This Court has already held that, under Social Services Law § 368-a (1) (h), petitioner's right to reimbursement of overburden expenditures accrued when petitioner made payment to the state for those expenses for which no local share was owed, i.e., prior to January 1, 2006 (see Matter of County of St. Lawrence v Shah, 95 AD3d at 1554; Matter of County of St. Lawrence v Daines, 81 AD3d at 216). The 2012 amendment did not specifically repeal any part of Social Services Law § 368-a, or affect the counties' inherent right to reimbursement. Rather, the amendment simply imposed a statute of limitations for the payment of claims for such reimbursement. A statute of limitations does not impair an underlying substantive right, but may deprive a litigant of any remedy. In April 2012, the Legislature could have reasonably decided that, to promote finality of claims and effectuate accurate budgeting, reimbursements from more than six years earlier could be barred (id. at 92 [some citations omitted]). Thus, the Court held that Section 61, as so construed, is not unconstitutional (see id.). 20 The Third Department held, however, that where, as here, "a 'limitations period is statutorily shortened, or created where none existed before,' due process requires a reasonable grace period before the time bar takes effect" (id. at 93, quoting Brothers v Florence, 95 NY2d 290, 300 [2000]). Noting that "the Legislature did not expressly set a grace period in [Section 61]," the Third Department, in an exercise of its considerable discretion, imposed a six-month due process grace period running from the date of its decision during which "any social services district [may] file a claim for reimbursement of any pre-2006 overburden expenditures, with [Section 61] barring as untimely any claims submitted thereafter" (St. Lawrence III, 124 AD3d at 93). In choosing the grace period, the Third Department considered "petitioner's arguments that respondents have improperly withheld records that are necessary for reimbursement, or even to determine whether such a claim exists," and acknowledged that Petitioners and the other counties could have reasonably relied on the trial courts' declarations that Section 61 was unconstitutional as establishing their continuing right to submit claims for overburden reimbursement under Social Services Law § 368-a(1)(h)(i) (id. at 93 n 1). The Court reasoned that a single grace period for all counties was appropriate because "the case-by-case approach results in uneven application and does not provide clear guidance to potential claimants" (id.). Thus, under the 21 Third Department's decision, any overburden reimbursement claims submitted by any county after May 26, 2015 are barred. Finally, the Third Department held that "Supreme Court did not err in directing DOH to identify, verify and pay the total unpaid overburden expenditures that petitioner incurred prior to 2006" (id. at 94). Specifically, the Court held, Petitioner asserts that it was entitled to a writ of mandamus to compel DOH to comply with the mandate of Social Services Law § 368-a (1), which states that DOH "shall" reimburse petitioner for, among other things, overburden expenditures; the statute does not include any requirement that petitioner make a claim for those payments. Thus, DOH was required to pay those reimbursements even without any claims being made, and should have done so by 2006. This Court has already determined that the state cannot be relieved of its obligation to refund the counties for overburden expenditures made prior to January 1, 2006 (see Matter of County of St. Lawrence v Shah, 95 AD3d at 1554). As DOH's statutory obligation to make reimbursement for these expenditures is mandatory and ministerial and does not involve any discretion, petitioner was entitled to a writ of mandamus requiring DOH to review its records to identify any individuals who may not have been properly coded as overburden patients, and all medical services that were provided to individuals who were or were not properly coded as overburden patients, then process all pre-2006 overburden expenditure reimbursements to petitioner (id. [emphasis added]). The Third Department reaffirmed its St. Lawrence III holding in County of Chemung and County of Broome (see Matter of County of Broome v Shah, 130 AD3d 1347 [3d Dept 2015]; Matter of County of Chemung v Shah, 124 AD3d 963, 964 [3d Dept 2015], lv granted 25 NY3d 903 [2015], appeal PU). Respondents moved for leave to appeal from the Third Department orders in St. Lawrence III, 22 County of Chemung, and County of Broome. This Court granted leave to appeal in St. Lawrence III and County of Chemung (see Matter of County of Chemung v Shah, lv granted 25 NY3d 903 [2015]; Matter of County of St. Lawrence v Shah, lv granted 25 NY3d 903 [2015]). Respondents' motion for leave to appeal in County of Broome remains pending. The Fourth Department's Order in County of Chautauqua in a Memorandum and Order dated and entered March 20, 2015, almost four months after the Third Department's decision in St. Lawrence III, the Appellate Division, Fourth Department (Smith, J.P., Cami, Lindley, and Valentino, JJ.) reached an entirely different conclusion from the Third Department. The Fourth Department modified the Supreme Court, Chautauqua County judgment by "denying the petition-complaint in its entirety" and granted judgment to Respondents, declaring that Section 61 has not been shown to be unconstitutional, solely on the ground that Petitioner Chautauqua County, as a subdivision of the state, cannot challenge the deprivation of its vested rights to overburden reimbursement occasioned by Section 61 on due process grounds because it is not a "person" within the meaning of the Due Process Clause of the New York Constitution (see Matter of County of Chautauqua v Shah, 126 AD3d 1317, 1317, 1320 [4th Dept 2015], appeal and lv PU). 23 Ignoring this Court's comprehensive discussion of the municipal capacity issue in City of New York, and the Third Department's resolution of the same issue in St. Lawrence III and Chemung, the Fourth Department applied a two-part test that finds no support in New York law: first, whether Petitioner Chautauqua County had capacity to bring a claim to court and, second, whether Petitioner Chautauqua County had a substantive right to assert a claim under the Constitution (see id. at 1320-1321). Although the Fourth Department properly held that Respondents had waived any capacity defense by failing to raise it before Supreme Court, the Court nonetheless held that Petitioner, as a municipality, could not assert due process rights against the State (see id. at 1320). Ultimately, the Court held that Petitioner Chautauqua County did not have a substantive right to challenge Section 61 on due process grounds because it is not a "person[] within the meaning of the constitutional due process provisions," and thus may not raise a due process argument against the State (id.), Remarkably, notwithstanding that Petitioner Chautauqua County pled due process claims only under the New York Constitution (R 51-54), the Fourth Department's analysis relies almost exclusively on federal law, from which this Court, in City of New York, held New York has departed (see County of Chautauqua, 126 AD3d at 1321). In fact, the Fourth Department cited only one New York case in support of its conclusion that municipalities can never assert due 24 process rights against the State, Matter of Jeter v Ellenville Cent. School Dist. (41 NY2d 283 [1977]), and significantly misstated this Court's holding in Jeter in doing so (see County of Chautauqua, 126 AD3d at 1321). Notably, the Fourth Department's decision makes no mention of the Third Department's contrary holdings in St. Lawrence 111 and Cheinung, which were decided months earlier, and makes no attempt to distinguish them (see id. at 1320-- 1321), Because the Fourth Department decided the case solely on the constitutional ground that Petitioner Chautauqua County can never assert due process rights against the State, the Court did not reach the question of the proper interpretation of Section 61 decided by the Third Department. Additionally, because the Fourth Department determined that Section 61 implicitly repealed Respondents' overburden reimbursement obligation under Social Services Law § 368-a, the Court held that mandamus to compel Respondents to satisfy that duty did not lie (see id. at 1322). Finally, the Fourth Department also held that Respondents are not subject to tort liability to municipalities "for the reasons stated in the decision at Supreme Court, Jefferson County" (id.). Following its decision in County of Chautauqua, the Fourth Department reached the same conclusions in County of Jefferson, County of Genesee, County of Oneida, County of Cayuga, and County of Monroe (see Matter of County of Jefferson v Shah, 126 AD3d 1322 [4th Dept 2015], appeal and lv PU; Matter of 25 County of Genesee v Shah, 128 AD3d 1380 [4th Dept 2015], appeal and lv PU; Matter of County of Oneida v Shah, 128 AD3d 1381 [4th Dept 2015], appeal and lv PU; Matter of County of Cayuga v Shah, 129 AD3d 1503 [4th Dept 2015], appeal and lv PU; Matter of County of Monroe v Shah, 129 AD3d 1505 [4th Dept 2015], appeal and lv PU). Petitioners appealed the Fourth Department orders as of right, pursuant to CPLR 5601(b)(1), on the ground that a substantial constitutional question was directly involved, and moved for leave to appeal to the extent this Court determines that an appeal as of right does not lie. In a letter dated June 24, 2015, this Court indicated that it would hold Petitioners' motions for leave to appeal in abeyance pending the determination of Petitioners' appeals as of right. POINT I THE THIRD DEPARTMENT PROPERLY CONSTRUED SECTION 61 AS IMPOSING A FINAL LIMITATIONS PERIOD FOR THE SUBMISSION OF OVERBURDEN REIMBURSEMENT CLAIMS As more fully discussed infra (see Point III[B], [C]), under this Court's decisions in City of New York, Levittown, County of Rensselaer v Regan (173 AD2d 37 [3d Dept 1991], affd 80 NY2d 988 [1992]), and Matter of Krauskopf v Perales (139 AD2d 147 [3d Dept 1988], affd 74 NY2d 730 [1989]), Petitioners have capacity to sue the State to vindicate their proprietary interest in a specific fund and may do so through a due process challenge to Section 61. In light of this Court's clear precedent, and recognizing that the language of Section 61, on its 26 face, purports to retroactively extinguish Petitioners' vested rights to overburden reimbursement in violation of the Due Process Clause of the New York Constitution (see Point IV, infra), the Third Department had no choice but to construe Section 61 in the only manner in which its constitutionality could be preserved—as imposing a final limitations period for the submission of overburden reimbursement claims. Indeed, settled principles of statutory interpretation mandate that Section 61 must be construed to avoid the impairment of Petitioners' vested rights to overburden reimbursement. Therefore, laying aside for the moment the Fourth Department's failure to follow this Court's clear teachings in City of New York and Levittown, this case turns on the proper interpretation of Section 61. In St, Lawrence III, the Third Department held that Social Services Law § 368-a and Section 61 may be read together and applied harmoniously to effectuate the purposes of each (see St. Lawrence III, 124 AD3d at 91-92). As the Third Department held, the only way that Section 61 may be construed to preserve its constitutionality is as imposing a limitations period for the final submission of overburden reimbursement claims (see id.). As so construed, Petitioners' vested rights to overburden reimbursement are preserved, and Section 61 accomplishes its legislative intent to foreclose further claims and provide the State with the fiscal certainty it so desired. 27 In contrast, the Fourth Department's interpretation of Section 61, as implicitly repealing Social Services Law § 368-a(1)(h)(i) and retroactively extinguishing Petitioners' vested rights to overburden reimbursement not only conflicts with the settled principles of statutory construction, but would also render the provision unconstitutional and void, a result that must be avoided (see County of Chautauqua, 126 AD3d at 1319, 1322). Therefore, because only the Third Department's interpretation of Section 61 as a statute of limitations extinguishing Petitioners' remedy to enforce their vested rights when it runs, but preserving their underlying reimbursement rights, permits Section 61 to be sustained, the Third Department orders should be affirmed and the Fourth Department orders reversed. A. Section 61 May Only be Construed as Imposing a Limitation Period for the Final Submission of Overburden Reimbursement Claims. It is well settled that where, as here, two statutory provisions relate to the same subject matter, they must be construed together to effectuate the statutory purposes of each (see Alweis v Evans, 69 NY2d 199, 204 [1987]; see also Matter of Albany Law School v New York State Off of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 121 [2012] ["Statutes that relate to the same subject are in pari materia and should be construed together unless a contrary intent is clearly expressed by the Legislature." (internal quotation marks and citation omitted)]; Matter of Town of Brookhaven v New York State Bd. of Equalization & Assessment, 88 NY2d 354, 361 [1996] ["Given the absence of an explicit statement 28 by the Legislature to the contrary, settled jurisprudence requires us to read the statutes, if possible, in a manner which gives effect to both"]; St. Lawrence II, 95 AD3d at 1552). Indeed, "[t]he repeal of a statute by implication is not favored by law, for when the legislature intends to repeal an act it usually says so expressly" (Pines v State of New York, 115 AD3d 80, 97-98 [2d Dept 2014], appeal dismissed 23 NY3d 982 [2014], quoting Matter of Tiffany, 179 NY 455, 457 [1904]; see also Matter of Natural Resources Defense Council v New York City Dept. of Sanitation, 83 NY2d 215, 222-223 [1994] [`It is well settled that [r]epeal or modification of legislation by implication is not favored in the law, and that the doctrine will be resorted to only in the clearest of cases. Put another way, a repeal by implication will not be discovered unless the conclusion is unavoidable, as when repugnancy between the two statutes is plain" (internal quotation marks and citations omitted)]; Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186, 195 [1988] ["Repeal or modification of legislation by implication is not favored in the law. Absent an express manifestation of intent by the Legislature—either in the statute or the legislative history—the courts should not presume that the Legislature has modified an earlier statutory grant of power to an agency."]; Ball v State of New York, 41 NY2d 617, 622 [1977]). "The absence of an express provision in a later statute, for repeal of an earlier one, gives rise to a presumption that repeal was not intended" (Cimo v State 29 of New York, 306 NY 143, 148-49 [1953]). "'If by any fair construction, both statutes can be given operation, implied repeal will not be declared' (Pines, 115 AD3d at 98, quoting Cimo, 306 NY at 149). Thus, a statute cannot be "deemed impliedly modified by a later enactment unless the two are in such conflict that both cannot be given effect. If by any fair construction, a reasonable field of operation can be found for [both] statutes, that construction should be adopted" (Consolidated Edison Co. of N.Y. , 71 NY2d at 195 [internal citation and quotation marks omitted]; see also Alweis, 69 NY2d at 204). Most importantly, when this Court is faced with two differing interpretations of a statute, only one of which would avoid a violation of the New York Constitution, the Court is obligated to construe the provision in order to preserve its constitutionality (see People v Santorelli, 80 NY2d 875, 876 [1992] [holding that the Court "must construe a statute . . . to uphold its constitutionality if a rational basis can be found to do so"]; Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 66 NY2d 298, 306 [1985] ["a statute is to be construed so as to sustain its constitutionality"]; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340, 346 [1982] ["[a] statute . . . should be construed in such a manner as to uphold its constitutionality"]; Matter of Buttonow, 23 NY2d 385, 393 [1968] [reading requirement for a hearing into statute to preserve its constitutionality]; Spahn v 30 Julian Messner, Inc., 21 NY2d 124, 127 [1967]; McKinney's Cons Laws of NY, Book 1, Statutes § 150). As the Third Department held in St. Lawrence III, Social Services Law § 368-a and Section 61 may be read together and applied harmoniously to effectuate the purposes of each. Social Services Law § 368-a unambiguously entitles Petitioners to 100 percent reimbursement for all overburden local share payments made prior to January 1, 2006 (see Social Services Law § 368-a[1][h][i] ["There shall be paid to each such district . . . Beginning January first, nineteen hundred eighty-four, one hundred per centum of the amount expended for medical assistance for those individuals who are eligible pursuant to section three hundred sixty-six of this article as a result of a mental disability . . . after first deducting therefrom any federal funds properly received or to be received on account thereof." (emphasis added)]). Petitioners' right to reimbursement vested when Petitioners paid their overburden local share to the State prior to January 1, 2006 (see St. Lawrence II, 95 AD3d at 1553-1554 ["Since the state was never entitled to these funds, the 2010 amendment, even if found to apply to overburden expenditures, [could not] serve to transform these county funds into state property and relieve the state of the legal obligation to return them" (emphasis added)]; St. Lawrence I, 81 AD3d at 216 ["petitioner's right to reimbursement for [Medical Assistance] expenditures accrued" "prior to 2006, upon payment to DOH for 31 services provided to overburden patients for which no local share was owing" (emphasis added)]). Section 61 does not explicitly or implicitly repeal any part of Social Services Law § 368-a. Had the Legislature intended to eliminate Respondents' reimbursement obligation entirely, it would have repealed that provision, or used language that expressly eliminated all overburden reimbursement (see Alweis, 69 NY2d at 204 ["Obviously, the judiciary should not lightly infer that the Legislature has repealed one of its own enactments when it has failed to do so expressly; the Legislature is hardly reticent to repeal statutes when it means to do so."]). It chose not to do so, however. Instead, as the Third Department held, the intent of Section 61 was to provide the State with financial certainty by imposing a statute of limitations on the payment of Petitioners' claims for overburden reimbursement (see St. Lawrence III, 124 AD3d at 92 ["The 2012 amendment did not specifically repeal any part of Social Services Law § 368—a or affect the counties' inherent right to reimbursement. Rather, the amendment simply imposed a statute of limitations for the payment of claims for such reimbursement."]). Notably, the Third Department credited Respondents' argument that the intent of Section 61 was to provide the State with financial certainty and, in fact, Respondents essentially conceded below that a statute of limitations for reimbursement claims was intended (Resps' Br., at 21-22 [arguing that the 32 Legislature provided a grace period for the final submission of overburden reimbursement claims before the effective date of Section 61, quoting Brothers, 95 1\--Y2d at 301, as follows: "if the Legislature shortens a statute of limitations period but sets a reasonable grace period, 'its determination of what constitutes a reasonable time is entitled to deference in the absence of some 'palpable error”"]). Indeed, Social Services Law § 368-a does not require or otherwise address submission of claims for reimbursement. The claim procedure was informally implemented after the enactment of that statute as a remedy for obtaining the reimbursement. As so construed, Section 61 does not impair Petitioners' unquestionably vested right under Social Services Law § 368-a, but only extinguishes a remedy through which Petitioners may enforce that right (see Matter of Paver & Wildfoerster [Catholic High School Assn.] , 38 NY2d 669, 676 [1976] ["it has been said long ago and many times since that the Statute of Limitations only bars the remedy; it does not impair the underlying right"]). Thus, the Third Department's interpretation of Section 61 is consistent with the construction expressly intended by the Legislature—that it "shall not be construed to alter, change, affect, impair or defeat any rights, obligations, duties or interests accrued, incurred or conferred prior to the effective date of this act" (L 2012, ch 56, part D, § 65[k]; see also General Construction Law § 93 ["The repeal of a statute or part thereof shall not 33 affect or impair any . . . right accruing, accrued or acquired . . . prior to the time such repeal takes effect"]; St. Lawrence II, 95 AD3d at 1553-1554; St. Lawrence I, 81 AD3d at 216; County of Herkimer v Daines, 60 AD3d at 1457). In contrast, the Fourth Department's interpretation conflicts not only with the construction intended by the Legislature to preserve vested rights, but also with its own prior decision in Matter of County of Niagara v Daines, where the Fourth Department rejected Respondents' construction of the 2010 Amendment to "defeat[ ] their preexisting duty to reimburse petitioner for the overburden expenditures," because language in the 2010 Amendment that was identical to L 2012, ch 56, part D, § 65(k) unambiguously preserved Petitioners' preexisting rights (County of Niagara v Daines, 91 AD3d at 1289; see also Matter of Monroe County Pub. School Dists. v Zyra, 51 AD3d 125, 131 [4th Dept 2008] ["the rules of statutory construction require that we avoid rendering statutory language superfluous"], lv denied 52 AD3d 1293 [4th Dept 2008]). In fact, the Fourth Department's interpretation of Section 61 in County of Chautauqua even arguably conflicts with its prior decision in Matter of County of Niagara v Shah (122 AD3d 1240 [4th Dept 2014]), where the Court held that "section 61 has retroactively changed the law" by extinguishing "petitioner's right to submit claims for reimbursement of overburden expenditures made prior to 2006"—i.e., the remedy 34 through which Petitioners could recover the reimbursement owed pursuant to Social Services Law § 368-a (id. at 1242 [emphasis added]). Construed as a statute of limitations eliminating Petitioners' remedy for recovery of overburden reimbursements, Section 61 can be given its intended effect to close the books on pre-2006 overburden reimbursement claims, while also preserving the legislative intent of Social Services Law § 368-a to provide 100 percent reimbursement to Petitioners and the other counties (see Governor's Mem approving L 1983, ch 816, 1983 McKinney's Session Laws of NY at 2808 ["The bill further continues State reimbursement of local governments for 100% of the cost of providing medical assistance to mentally disabled, as begun by the Human Services Overburden Aid program. The legislation represents a major initiative to achieve a fundamental restructuring of the way in which Medicaid is financed by the State and its local governments. Such a restructuring has been one of my highest priorities and, while I supported a more comprehensive takeover of local Medicaid costs, this legislation provides reliable relief to local governments which they can budget with certainty,"]). Construed otherwise, Section 61 can only be read to extinguish Petitioners' vested rights to overburden reimbursement retroactively, contrary to the intent of the Legislature and in violation of the Constitution. 35 Thus, it is this Court's duty to construe Section 61 in the only manner that will preserve its constitutionality, as imposing a final limitations period for the recovery of the overburden reimbursement unambiguously provided under Social Services Law § 368-a (see Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143, 149 [1983] ["the section is to be construed so as to sustain its constitutionality . . . if possible"]; H. Kauffman & Sons Saddlery Co. v Miller, 298 NY 38, 44 [1948] ["Where the language of a statute is susceptible of two constructions, the courts will adopt that which avoids injustice, hardship, constitutional doubts or other objectionable results."]). Indeed, if the Third Department had not construed Section 61 as imposing a final limitations period for the submission of reimbursement claims, it necessarily would have been compelled to declare the statute unconstitutional as retroactively impairing Petitioners' vested rights to overburden reimbursement (see Point IV, infra). B. The Third Department Properly Imposed a Six Month Grace Period for the Final Submission of Overburden Reimbursement Claims. When, as here, the Legislature imposes a limitations period where one did not previously exist, "Due Process requires that potential litigants be afforded 'a reasonable time . . . for the commencement of an action before the bar takes effect' (Brothers v Florence, 95 NY2d 290, 300 [2000], quoting Terry v Anderson, 95 US 628, 632-633 [1877]). Thus, in order to provide constitutionally adequate due process before a retroactive deprivation of Petitioners' remedy to 36 enforce their vested rights to overburden reimbursement, Section 61 was required, at the very least, to provide a reasonable grace or limitations period for submission of claims after it became effective (see Brothers, 95 NY2d at 301 ["Where, as here, however, there is no legislatively prescribed grace period, a court may uphold the constitutional validity of the retrospective application of the new statute by interpreting it as authorizing suits upon otherwise time-barred claims within a reasonable time after the statute's effective date" (emphasis added)]; Roman Catholic Diocese of Albany, NY. v New York State Workers' Compensation Bd., 96 AD3d 1288, 1290 [3d Dept 2012] ["With respect to legislation that is retroactive in the sense that it shortens a limitations period for claims that accrued prior to the statute's effective date, due process is satisfied when the Legislature expressly sets a reasonable grace period" (internal quotation marks and citation omitted)]). Section 61 did no such thing. Instead, it purported to bar Petitioners' claims for reimbursement immediately when it became effective, without any grace period at all (see St. Lawrence III, 124 AD3d at 93). Because Section 61 did not provide a grace period for the final submission of overburden reimbursement claims, the Third Department exercised its discretion and determined that a six-month limitations period running from the date of its decision — November 26, 2014 — was warranted in order to preserve the statute's constitutionality (see Brothers, 95 37 NY2d at 301 ["Where, as here, however, there is no legislatively prescribed grace period, a court may uphold the constitutional validity of the retrospective application of the new statute by interpreting it as authorizing suits upon otherwise time-barred claims within a reasonable time after the statute's effective date."]). The Third Department properly rejected Respondents' argument that the limitations period imposed ran for the two and a half-month period from the date that Section 61 was introduced to its effective date. Indeed, this Court has already rejected Respondents' exact argument, holding that the time period between legislation's passage and effective date cannot serve as a grace period to satisfy the strictures of due process (see Gilbert v Ackerman, 159 NY 118, 123-124 [1899]; see also Hastings v H M Byllesby & Co., 293 NY 413, 420 [1944] ["`the fact that [an] act affords a reasonable interval between its passage, or becoming a law, and its taking effect is not enough' to remove doubts as to the validity of a statute if applied to causes of action which would be barred at the moment the statute takes effect"], quoting People v Cohen, 245 NY 419, 422 [1927]). Instead, in choosing the grace period, the Third Department properly considered "the importance of the 'subject matter' of the claims being curtailed by the new Statute of Limitations" and "reconcile[d the] legislative goals with constitutional restraints and fairness to litigants" (Brothers, 95 NY2d at 303 [citation and internal quotation marks omitted]). Specifically, in determining that 38 the six-month due process grace period should be run from the date of its decision on November 26, 2014, the Third Department noted that Petitioners and the other counties could have reasonably relied on the trial courts' declarations that Section 61 was unconstitutional as establishing their continuing right to submit claims for overburden reimbursement under Social Services Law § 368-a(1)(h)(i) (see St. Lawrence III, 124 AD3d at 93). The Third Department also considered "petitioner's arguments that respondents have improperly withheld records that are necessary for reimbursement, or even to determine whether such a claim exists" and "that petitioner and other similarly situated social services districts have had more than eight years to obtain such documentation and submit claims for pre- 2006 reimbursement, including many years during that time when they were aware of respondents' errors and failure to pay some reimbursements that were owing" (id. at 93 n 1; see also e.g. Matter of Thomas v Bethlehem Steel Corp., 63 NY2d 150, 155 [1984] ["We read the six-month 'grace' period for employees whose disablement and knowledge of disablement occurred prior to October 1, 1980 as a transitional measure for those with viable claims at October 1, 1980, who could by virtue of the amendment otherwise have had their remaining time to file claims reduced even below three months."]). Balancing all of these considerations, including the State's interest in obtaining fiscal certainty, the Third Department properly determined that a final 39 six-month grace period running from the date of its decision gave Petitioners and all of the other counties the process they were due under the New York Constitution. Demonstrating its concern for establishing a final and predictable reimbursement claim period for both the counties and the State, the Third Department also determined that the grace period must apply to all counties across the state in order to avoid what would otherwise be an unpredictable scheme of different periods running for each county (see St. Lawrence III, 124 AD3d at 93 ["This Court can either make an individualized assessment on a case-by-case basis to determine whether the delay in interposing the claim was reasonable under the particular facts, or we can set a generally-applicable period that would afford a reasonable opportunity for anyone to file a claim. Because the case-by-case approach results in uneven application and does not provide clear guidance to potential claimants, we deem a flat grace period to be preferable." [citation omitted]). The Third Department's decision provides substantial justice for Petitioners and the other counties, providing them with a portion of the 100 percent reimbursement that was guaranteed under Social Services Law § 368-a(1)(h)(i). It also gives the State the financial certainty sought through Section 61 by virtue of a truncated grace period, Because the Third Department's balancing of the interests in fashioning relief to avoid declaring Section 61 unconstitutional was not an abuse 40 of its considerable discretion, and the Third Department's limitations period has now expired, the Third Department orders should be affirmed. POINT II THIS COURT SHOULD REVIEW THE MERITS OF THE ERRONEOUS FOURTH DEPARTMENT ORDERS Under the New York Constitution, this Court's jurisdiction is "limited to the review of questions of law" (NY Const, art VI, § 3; see also CPLR 5501[b]; Commercial Bank v Sherwood, 162 NY 310, 317 [1900] ["the allowance of the appeal by the Appellate Division brings before us for determination every question of law that arose upon the trial which we are not forbidden by the Constitution to review"]). The construction of Article I, § 6 of the New York Constitution at issue, and whether the Fourth Department erred in denying the Counties' petitions- complaints in their entirety, are issues of law that are reviewable by this Court (see e.g. Matter of Lopez v Evans, 25 NY3d 199, 205-207 [2015]; County of Nassau v Canavan, 1 NY3d 134, 141-145 [2003]; see also People v Ahearn, 196 NY 221, 242 [1909] [Bartlett, J., concurring] [noting that the "construction of the language of the Constitution" is "a question of law"]). First, the Fourth Department clearly understood and intended that it was resolving Respondents' appeal as an issue of law. The decretal paragraph of the Fourth Department's decision expressly provides that in so many words: "It is hereby ORDERED that the judgment so appealed from is unanimously modified 41 on the law by denying the petition-complaint in its entirety" (County of Chautauqua, 126 AD3d at 1317 [emphasis added]). Second, the Fourth Department's decision explicitly rejects Petitioners' argument that Respondents' objection that Petitioners have no due process rights is nothing but an unpreserved lack of capacity to sue defense. The Court expressly recognized that any lack of capacity to sue defense was waived, and clearly resolved the appeal in Respondents' favor without exercising its discretion to unwaive Respondents' waiver: Here, it is clear that Respondents did not raise the defense of capacity in their answer or a pre-answer motion, and thus it is waived. Nevertheless, Respondents' waiver of their capacity defense does not afford petitioners the right to relief sought. In other words, the issue of "capacity concerns [petitioners'] power to appear and bring [their] grievance before the court," but petitioners must then establish their constitutional claim (id. at 1320 [citation omitted], quoting Matter of Graziano v County of Albany, 3 NY3d 475, 478-479 [2004]). Instead, the Court dismissed Petitioners' due process claims based upon its conclusion (erroneous as a matter of law) that, as non-persons, Petitioners lack standing to bring any cognizable due process claims against the State (see id. ["We agree with respondents that petitioners are not persons within the meaning of the state and federal constitutions and thus may not raise a due process argument against the State."]), which is a question of the Court's jurisdiction and, thus, 42 reviewable at any stage without preservation (see id. ["We agree with Petitioners, however, that the issue of lack of capacity to sue does not go to the jurisdiction of the court, as in the case when the Petitioners lack standing" (internal quotation marks omitted)]; see also Fry v Village of Tarrytown, 89 NY2d 714, 718 [1997]). That the Fourth Department viewed Petitioners' non-person status as a fatal jurisdictional defect is further demonstrated by the Court's reliance upon federal case law explicitly taking that position. For example, the Fourth Department relied on City of E. St. Louis v Circuit Ct. for Twentieth Jud. Circuit, St. Clair County, Ill. (986 F2d 1142 [7th Cir 1993]), where the Seventh Circuit stated: The City's claim for injunctive relief has also foundered on the standing requirement. Municipalities cannot challenge state action on federal constitutional grounds because they are not "persons" within the meaning of the Due Process Clause. Because East St. Louis is not a "person," it cannot invoke the protection of the Fifth or Fourteenth Amendments, and therefore cannot bring a section 1983 claim. Thus, the district court lacked jurisdiction to hear this claim (id. at 1144 [citation omitted and emphasis added]). The Fourth Department also relied upon City of New Rochelle v Town of Mamaroneck (111 F Supp 2d 353 [SD NY 2000]), where the Court dismissed a municipality's Fourteenth Amendment claim on the basis of lack of standing, even though the issue was "not addressed by the parties" (id. at 364). Notably, the Court in City of New Rochelle quoted from another federal decision emphasizing that "whether a claimant has standing is the threshold of every federal case, 43 determining the power of the court to entertain the suit" (id. at 358 [internal quotation marks omitted], quoting In re Gucci, 126 F3d 380, 387-388 [2d Cir 1997]). Similarly, the Fourth Department cited to City of S. Lake Tahoe v California Tahoe Regional Planning Agency (625 F2d 231 [9th Cir 1980], cert denied 449 US 1039 119801), where the Ninth Circuit dismissed a city's due process claim against the State on jurisdictional grounds because "[s]tanding is a necessary element of federal-court jurisdiction" (id. at 233, 239 ["Neither the City's nor the councilmembers' claims supply a sufficient basis for standing to bring this action . . . their claims do not support federal-court jurisdiction."]). Because the Fourth Department based its dismissal of these proceedings on the purely legal conclusion that the Court lacked subject matter jurisdiction to entertain their due process claims for lack of standing, it is readily apparent that the issues here are reviewable. This is not a case where this Court should disregard the Appellate Division's dispositional statement that modification by dismissal was "on the law" but conclude instead that the Appellate Division exercised its non- reviewable discretion or fact-finding powers. Indeed, there appear to be only two classes of cases where this Court has disregarded an Appellate Division's characterization of its disposition as "on the law" and dismissed an appeal as non- reviewable: (1) where examination of the Appellate Division's decision reflects that it necessarily entailed either the exercise of discretion or fact-finding authority 44 (see Andon v 302-304 Mott St. Assoc., 94 NY2d 740 745-746 [2000] [Appellate Division decision to deny discovery request reflected a discretionary balancing of interest]; Small v Lorillard Tobacco Co., 94 NY2d 43, 53 [1999] [Appellate Division decision to deny class action status necessarily entailed exercise of discretion in determining that the statutory criteria were not satisfied by the facts]; Brady v Ottaway Newspapers, 63 NY2d 1031, 1033 [1984] [Appellate Division discovery ruling involved exercise of discretion]; Matter of Von Bulow, 63 NY2d 221, 225 n * [1984] [Appellate Division's determination whether or not to appoint a third co-committee for incompetent was necessarily a judgment upon the facts and lies in the Court's discretion]) and (2) where examination of the Appellate Division's decision demonstrates that the disposition of the appeal could not under any circumstances have been reached without the exercise of the Court's discretion (see Brown v City of New York, 60 NY2d 893, 894 [1983] [Appellate Division reversed jury verdict for plaintiff on malicious prosecution claim based on inconsistency with verdict for city on false arrest claim, despite city's lack of timely objection to the inconsistent verdicts]; Feinberg v Saks & Co., 56 NY2d 206, 210-211 [1982] [same]). Here, the Fourth Department's determination that Petitioners' lack of standing as non-persons to assert due process claims against the State required dismissal of these proceedings on jurisdictional grounds, irrespective of 45 Respondents' failure to object at nisi Arius, did not entail any exercise of the Court's discretion because lack of jurisdiction can be raised, as a matter of law, at any time (see Fry, 89 NY2d at 718 ["a court's lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action" (internal quotation marks omitted)]; see also Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008]). The Fourth Department's treatment of Petitioners' ability to assert due process claims as a jurisdictional standing issue, however, was legal error, because the Fourth Department disregarded this Court's teachings in City of New York and Levittown. First, under Levittown and City of New York, a municipality's general inability to assert any legally cognizable claim, due process, equal protection, or otherwise, against the State is not treated as a fatal jurisdictional defect, which can be raised at any stage of the litigation, but as a waivable lack of capacity to sue defense. Thus, as this Court explained in City of New York, the Levittown Court entertained a school district's equal protection claim on the merits without sua sponte dismissing the action on jurisdictional grounds for lack of standing, and did not address a lack of capacity to sue defense because the State had waived it by not appealing on that issue, explaining: 46 As the municipal plaintiffs have virtually conceded, however, when Levittown reached the Court of Appeals, the State did not appeal on the capacity to sue issue. The issue of lack of capacity to sue does not go to the jurisdiction of the court, as is the case when the plaintiffs lack standing. Rather, lack of capacity to sue is a ground for dismissal which must be raised by motion and is otherwise waived. It follows, then, that if the defense of lack of capacity to sue can be waived by merely failing to raise it, it may also be abandoned on appeal and, in fact, was abandoned by the State when its appeal in Levittown reached our Court (City of New York, 86 NY2d at 292 [citation omitted:). In Levittown, had this Court considered the municipal school districts to be non-persons for purposes of the Due Process or the Equal Protection Clauses of the New York Constitution, it would not have addressed the merits of their equal protection claims because it would have lacked jurisdiction to adjudicate them, irrespective of any failure of the State to raise the issue on appeal (see Levittown, 57 NY2d at 42-47). Second, City of New York also clearly establishes that although municipalities generally lack capacity to challenge state action on constitutional grounds, common law exceptions to the rule exist, one of which is directly applicable here: "where the state legislation adversely affects a municipality's proprietary interest in a specific fund of moneys" (City of New York, 86 NY2d at 291-292). Under the Fourth Department's rationale, however, the actual basis for its decision was that the Court lacked jurisdiction to consider Petitioners' due process claims for lack of standing, an issue that the State would not have been 47 required to preserve, unlike a capacity defense. It is only because the Fourth Department erroneously construed the capacity issue under City of New York as a non-waivable jurisdictional standing issue—a pure error of law—that the Court would have had to exercise any discretion to unwaive Respondents' waiver of its lack of capacity defense. Therefore, the Fourth Department's failure to follow this Court's controlling precedent in City of New York and Levittown is a pure error of law reviewable by this Court, not a non-reviewable exercise of discretion or interests of justice jurisdiction. Further, this Court can review questions of constitutional dimension such as those presented here when those issues are presented to the courts below by the pleadings or are specifically raised by the parties (see e.g. Matter of Couch v Perales, 78 NY2d 595, 605 n 5 [1991] ["the constitutional claim was properly raised in the trial court and thus, may be considered in this Court"]; Cooper v Morin, 49 NY2d 69, 78 [1979] ["While neither the Trial Judge nor the Appellate Division considered State constitutional claims, the complaint clearly presents them and they may, therefore, be reached by us."]). Although Respondents failed to raise their argument that municipalities cannot assert due process rights against the State before the trial courts, and therefore waived their capacity defense, the underlying constitutional issue was indisputably presented below by Petitioners' assertion of constitutional due process claims challenging the validity of Section 48 61, and was decided at every stage of judicial review (R 51-54; see St. Lawrence R1 40-43; St. Lawrence R2 47-51; St. Lawrence R3 33-38; Chemung R 39-43; Oneida R 44-48; Jefferson R 110-113; Cayuga R 47-50; Monroe R 50-53; Genesee R 47-53). The trial courts below could not have declared Section 61 unconstitutional if they did not first decide, albeit implicitly, that Petitioners are "persons" that have and can exercise substantive and procedural due process rights to challenge Respondents' denial of their overburden reimbursement claims on constitutional grounds (see e.g. Forti v New York State Ethics Commn., 147 AD2d 269, 273-274 [3d Dept 1989], affd 75 NY2d 596 [1990]). Therefore, because the constitutional due process issue was presented and necessarily decided at all stages of these cases, and the Fourth Department resolved the appeals below on the law, this Court may review the merits of the issue (see Matter of Seitelman v Lavine, 36 NY2d 165, 170 n 2 [1975]).3 3 Should this Court disagree that the Fourth Department's error was on a pure question of law, and conclude instead that the Fourth Department necessarily exercised its interests of justice jurisdiction to consider the due process issue, this Court should still consider the constitutional question on the merits. As Judge Robert Smith aptly explained in his concurrence in Hecker v State of New York (20 NY3d 1087 [2013]), the "Appellate Division's unreviewable, discretionary choice to reach the [unpreserved] issue does not make the issue itself any less one of law. Nor can I imagine any common sense reason why, if the Appellate Division erred in deciding that issue, we should be powerless to correct the error" (id. at 1088-1089 [R.S. Smith, J., concurring]; see also NY Const, art VI, § 3; CPLR 5501[11). Indeed, as Judge Smith noted, to hold otherwise produces a "bizarre result" where the party that failed to preserve the issue for appellate review—Respondents here—prevails solely as a result of its own failure (see Hecker, 20 NY3d at 1089 [Smith, R.S., concurring] ["And now in this Court, claimant loses the case— whether he is right or wrong on the merits—because of defendant's neglect."]). The result is even more startling here where Respondents' failure to raise the due process issue until on appeal 49 POINT HI PETITIONERS MAY CHALLENGE SECTION 61 UNDER THE DUE PROCESS CLAUSE OF THE NEW YORK CONSTITUTION This Court's holdings in City of New York, Levittown, County of Rensselaer, and Krauskopf recognize three core principles of New York law. First, New York law treats Petitioners' ability to assert due process claims challenging Section 61 as an issue of municipal capacity, and not a jurisdictional issue, as the Fourth Department erroneously held. Second, four substantive exceptions exist to the general rule of municipal incapacity, one of which directly applies in these cases. Third, even if no exceptions applied, Respondents' lack of capacity defense must be timely raised or it is waived. Ignoring this Court's dispositive decisions in City of New York and Levittown, the Fourth Department below held, for the first time under New York law, that a municipality may never challenge state legislation on due process grounds under the New York Constitution because it is not a "person" under the federal or state constitution. Although the federal courts have held that municipalities may not assert due process rights under the Fourteenth Amendment to the United States Constitution, as this Court recognized in City of New York, would permit them to retain an undue windfall of tens of millions of county taxpayer dollars, and would reward them for refusing to perform their statutorily mandated overburden reimbursement duty for over 30 years and then retroactively extinguishing the debt when they no longer desired to pay. Respondents should not be allowed to profit from their own neglect, to the substantial prejudice of all county taxpayers across this State. 50 New York has departed from this federal rule with respect to municipal due process and equal protection claims under the New York Constitution. The Fourth Department's mistaken analysis, relying almost exclusively on inapposite federal law, effectively re-writes this Court's comprehensive and well-reasoned jurisprudence on municipal capacity to challenge the state legislation, and cannot stand. A. The Federal Rule Regarding a Municipality's Ability to Assert Claims Against the State Only Applies to Federal Constitutional Claims. Federal courts have routinely held that a "[a] municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator" (Williams v Mayor & City Council of Baltimore, 289 US 36, 40 [1933] [emphasis added]). Based on this general rule under the United States Constitution, federal courts have held that a municipality "cannot invoke the protection of the Fourteenth Amendment against the state" (City of Newark v. State of New Jersey, 262 US 192, 196 [1923] [emphasis added]; see also City of Trenton v State of New Jersey, 262 US 182, 189-190 [1923]; Hunter v City of Pittsburgh, 207 US 161, 178-179 [1907]). Importantly, however, the United States Supreme Court has recognized that the ability of a municipal corporation "to complain of a violation of the Constitution of the state . . at least in the state courts, is a question of state 51 practice" (Williams, 289 US at 47-48). This Court is "the final authority as to the meaning of the New York Constitution" (Hernandez v Robles, 7 NY3d 338, 361 [2006], abrogated on other grounds by Obergefell v Hodges, 135 S Ct 2584 [June 26, 2015]), and has already pronounced, in City of New York, that New York treats a municipality's right to sue the state under the New York Constitution differently than federal courts treat this issue under the United States Constitution — namely, as an issue of the municipality's capacity to sue the State, with certain exceptions that apply in four limited instances (see City of New York, 86 NY2d at 291-292). Erroneously relying almost exclusively on federal precedent limited to claims under the Fourteenth Amendment (see e.g. City of E. St. Louis, 986 F2d at 1144 ["Municipalities cannot challenge state action on federal constitutional grounds because they are not 'persons' within the meaning of the Due Process Clause. Because East St. Louis is not a 'person,' it cannot invoke the protection of the Fifth or Fourteenth Amendments" (emphasis added)]; City of S. Lake Tahoe, 625 F2d at 233 ["(p)olitical subdivisions of a state may not challenge the validity of a state statute under the Fourteenth Amendment" (emphasis added)]), and ignoring New York law on the issue, the Fourth Department held for the first time under New York law that municipalities lack a substantive right to challenge state legislation under any circumstances (see County of Chautauqua, 126 AD3d at 1320-1321). 52 The Fourth Department's reliance on federal law to inform its analysis of Petitioners' constitutional rights under the New York Constitution, however, is inapposite, because Petitioners' due process claims were pled solely under the New York Constitution (R 51-54; see St. Lawrence R1 40-43; St. Lawrence R2 47-51; St. Lawrence R3 33-38. Chemung R 39-43; Oneida R 44-48; Jefferson R 110-113; Cayuga R 47-50; Monroe R 50-53; Genesee R 47-53), and because New York has departed from the general rule relied on by the federal courts under the United States Constitution (see City of New York, 86 NY2d at 291-292). Because New York has departed from the federal rule, the Fourth Department's reliance on federal law under the Fourteenth Amendment to support its conclusion that Petitioners cannot challenge Section 61 on state constitutional grounds was error (see Williams, 289 US at 47-48; Cooper, 49 NY2d at 79). B. New York Treats a Municipality's Ability to Challenge a State Statute under the New York Constitution as an Issue of Capacity. Contrary to the Fourth Department's holding, this Court has consistently treated a municipality's ability to sue the State to challenge a state statute under the New York Constitution as affecting the municipality's capacity to sue, not the municipality's substantive rights under the New York Constitution (see City of New York, 86 NY2d at 289; see also Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 155-156 [1994] ["Governmental entities created by legislative enactment present similar capacity problems. Being artificial creatures 53 of statute, such entities have neither an inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate. The principle is a well-known one, originating in the more general canon that a creature of the State . . has no power other than that given it by the Legislature, either explicitly or by necessary implication." (citations and internal quotation marks omitted; emphasis added)]). Municipal capacity is a threshold issue that "concerns a litigant's power to appear and bring its grievance before the court" (New York Blue Line Council, Inc. v Adirondack Park Agency, 86 AD3d 756, 758 [3d Dept 2011], appeal dismissed 17 NY3d 947 [2011], lv denied 18 NY3d 806 [2012], quoting Graziano, 3 NY3d at 478-479 [internal quotation marks and citation omitted]; see also Matter of Bethpage Water Dist. v DaMes, 67 AD3d 1088, 1091 [3d Dept 2009], lv denied 14 NY3d 707 [2010]), and does not speak to the merits of the underlying claim (see St. Lawrence III, 124 AD3d at 91, citing City of New York, 86 NY2d at 291- 292). In City of New York, this Court explicitly recognized four exceptions, under New York case law, to the general rule that a municipality lacks capacity to seek to invalidate state legislation or challenge state action on state constitutional grounds (see City of New York, 86 NY2d at 291-292). This Court held: The only exceptions to the general rule barring local governmental challenges to State legislation which have been identified in the case 54 law are: (1) an express statutory authorization to bring such a suit; (2) where the State legislation adversely affects a municipality's proprietary interest in a specific fund of moneys; (3) where the State statute impinges upon "Home Rule" powers of a municipality constitutionally guaranteed under article IX of the State Constitution; and (4) where "the municipal challengers assert that if they are obliged to comply with the State statute they will by that very compliance be forced to violate a constitutional proscription" (id. at 291-292 [citations omitted], quoting .Teter, 41 NY2d at 287; see also Matter of County of Nassau v State of New York, 100 AD3d 1052, 1055 [3d Dept 2012] ["municipalities and other local government entities lack capacity to attack actions by the State and the Legislature on constitutional grounds unless they properly invoke one of the four recognized exceptions to the rule"], lv dismissed 20 NY3d 1092 [2013]). Notably, two of these exceptions are specifically designed to allow municipalities to challenge the constitutionality of state statutes under the New York Constitution under certain circumstances (see e.g. Town of Black Brook v State of New York, 41 NY2d 486, 488 [1977] [municipality has capacity where state statute "undermine[s] home rule protection afforded local governments in article IX of the Constitution"]; Board of Educ. of Cent. School Dist. No. 1 v Allen, 20 NY2d 109, 118 [1967] [municipality has capacity to sue when it asserts that compliance with state legislation would force it to violate a provision of the state constitution], affd 392 US 236 [1968]). The very existence of these exceptions to 55 the general municipal incapacity rule demonstrates that the capacity exceptions recognized by this Court in City of New York apply to constitutional claims. Following City of New York, the courts of this State, including the Third Department in St. Lawrence III, Chemung, and Broome, have consistently treated this issue as one of capacity to sue (see City of New York, 86 NY2d at 291-292). Notably, this includes decisions specifically addressing a municipality's right to bring a due process claim against the State seeking to invalidate an act of the Legislature (see Board of Coop. Educ. Servs. for Sole Supervisory Dist. of Rockland County v State of New York, 171 Misc 2d 585, 591 [Sup Ct, Albany County 1996] [considering merits of due process claims of school districts, towns and taxpayers, after finding that municipalities had capacity to sue under the exception that applies where the municipal challengers assert "that if they are obliged to comply with the State statute they will by that very compliance be forced to violate a constitutional proscription," quoting Jeter, 41 NY2d at 287], affd 236 AD2d 84 [3d Dept 1997], appeal dismissed 91 NY2d 921 [1998], lv denied 92 NY2d 802 [1998]; Gulotta v State of New York, 228 AD2d 555, 556 [2d Dept 1996] [holding that municipalities lacked capacity to assert due process and equal protection claims because none of the four exceptions to the general rule applied], lv dismissed 88 NY2d 1053 [1996], lv denied 89 NY2d 811 [1997], citing Jeter, 41 NY2d at 287; Herzog v Board of Educ. of Lawrence Union Free School 56 Dist., 171 Misc 2d 22, 26-27 [Sup Ct, Nassau County 1996] [holding that municipality lacked capacity to bring a due process claim]). Therefore, the Fourth Department's holding that municipalities may never, as a matter of substance, assert due process rights to challenge a state statute on state constitutional grounds merely because they are subdivisions of the State flies in the face of this Court's controlling decision in City of New York, which comprehensively outlined the municipal capacity rule as it applies under New York law (see City of New York, 86 NY2d at 289-292). Instead, as this Court held in City of New York and the Third Department properly recognized below, New York law treats Respondents' argument as one implicating only municipal capacity to sue, which may be waived by the failure to interpose it before the trial courts (see id: at 292-293; St. Lawrence III, 124 AD3d at 91 ["despite respondents' argument to the contrary, their assertion that petitioner, as a political subdivision of the state, can have no due process claim against its creator, is essentially a challenge to petitioner's capacity"]). This Court expressly held in City of New York that, "[t]he issue of lack of capacity to sue does not go to the jurisdiction of the court," but is instead a "ground for dismissal which must be raised by motion and is otherwise waived" (City of New York, 86 NY2d at 292, citing CPLR 3211[a][3], [e]; see Bethpage Water Dist., 67 AD3d at 1091 [because "it is not a jurisdictional defect, unless 57 [municipal] capacity is raised as a defense, . . it will not prevent a court from reaching the merits"]; see also Town of Delhi v Telian, 119 AD3d 1049, 1050 [3d Dept 2014]; Matter of County of Oswego v Travis, 16 AD3d 733, 735 [3d Dept 2005] [finding that the New York State Association of Counties lacked capacity to sue the State to challenge a state statute on behalf of its member counties, because it failed to assert that one of the recognized exceptions applied, but reaching the merits of the same challenge by other municipal petitioners, because the state "respondents d[id] not contest on appeal [the petitioners'] legal capacity to bring th[e] proceeding"]). Thus, this Court explained that "the defense of lack of capacity to sue can be waived by merely failing to raise it, [and] may also be abandoned on appeal" (City of New York, 86 NY2d at 292). In fact, as explained in City of New York, this Court has previously addressed the merits of a municipality's equal protection claims where the State "did not appeal on the capacity to sue issue," and, as a result, "abandoned" the capacity issue when it reached this Court (Levittown, 57 NY2d at 40). Because Respondents failed to plead lack of capacity in their Verified Answers (R 364; see St. Lawrence R1 160; St. Lawrence R2 199; St. Lawrence R3 191; Chemung R 235; Oneida R 334;. Jefferson R 404; Cayuga R 286; Monroe R 314-315; Genesee R 325-326), or otherwise raise lack of capacity by motion, they waived the argument that Petitioners lack capacity to challenge Section 61 on state 58 due process grounds (see St. Lawrence III, 124 AD3d at 91 [municipal incapacity "argument was waived by respondents' failure to raise it as a defense in their answer or a pre-answer motion to dismiss"]; see also Town of Delhi, 119 AD3d at 1050 ["inasmuch as defendant can no longer raise the issue of plaintiff's capacity to sue in this action (due to waiver), plaintiff's arguments regarding its capacity have been rendered academic, and we decline to address them"]). Even in the absence of Respondents' waiver, it is clear that Petitioners fall within the proprietary interest exception to the general rule of municipal incapacity and, thus, may maintain these claims challenging Section 61 on state constitutional due process grounds. Here, Respondents admit that Section 61 "adversely affects [Petitioner's] proprietary interest in a specific fund of moneys" (City of New York, 86 NY2d at 291-292, citing County of Rensselaer, 173 AD2d at 40; Matter of Town of Moreau v County of Saratoga, 142 AD2d 864, 865 [3d Dept 1988])— namely, Petitioners' vested entitlement, pursuant to Social Services Law § 368- a(1)(h)(i), to reimbursement of the overburden local share payments taken by Respondents and held in the Comptroller's "special bank account" (R 436). As a result, Petitioners may bring a state constitutional claim challenging Section 61's deprivation of their proprietary interest in those funds (see County of Rensselaer, 173 AD2d at 40; Matter of City of New York v Lawton, 128 AD2d 202, 206 [3d Dept 1987]; Purcell v Regan, 126 AD2d 849, 850 [3d Dept 1987], lv denied 69 59 NY2d 613 [1987]).4 Indeed, the key factor in determining the existence of a proprietary interest in a specific fund for purposes of this exception is whether the municipalities are entitled to receive monies that have already been collected by the State (see County of Rensselaer, 173 AD2d at 40). Thus, under this limited exception to the general rule of municipal incapacity, municipalities in New York are permitted to challenge state legislation or the acts of the state on state constitutional grounds only where they can assert a proprietary interest in a specific fund of moneys. In County of Rensselaer, for example, the Legislature enacted Article 43-a of the Vehicle and Traffic Law to encourage counties to establish a new STOP-DWI program to combat driving while intoxicated, and provided an incentive to the counties to do so "by providing that all fines, penalties and forfeitures imposed by the various courts of the county in intoxicant-related offense prosecutions would be diverted from State revenues to the county where the offense was committed and deposited in a special account to fund the local program" (id. at 38-39). All of the counties elected to participate in the STOP-DWI program, and received the statutorily guaranteed funds for approximately 10 years (see id. at 39). In the 4 Although Purcell and Lawton characterize the issue as one of "standing," this Court, in City of New York, subsequently clarified that these cases are actually dealing with the issue of capacity, by citing two cases that rely on Purcell and Lawton — County of Rensselaer (173 AD2d at 40) and Town of Moreau (142 AD2d at 865) — as the basis for the general municipal incapacity rule's proprietary interest exception (see City of New York, 86 NY2d at 291-292). 60 1990-91 budget bill, however, a provision directed the State Comptroller to withhold up to two percent of the STOP-DWI funds collected from DWI offense proceedings and deposit the withheld funds in the state's general fund (see id.). After five participating counties challenged the appropriations provision on state constitutional grounds, the Third Department notably held that because the counties' "right to share in the STOP-DWI funds here was unconditional and absolute under Vehicle and Traffic Law § 1197," they were "asserting a proprietary claim of entitlement to a specific fund, namely, their entitlement to receive all of the fines, forfeitures and penalties collected by the courts in proceedings on the offenses specified in the STOP-DWI legislation" (id. at 40 [emphasis added]). Therefore, the Court held, the counties had capacity to challenge the deprivation of their vested right to receive the STOP-DWI funds. Similarly, in Purcell, Nassau County challenged a provision of the Public Authorities Law which authorized the State Comptroller to withhold certain per capita assistance appropriated to the county by the Legislature in order to satisfy an unpaid debt for MTA station maintenance (see Purcell, 126 AD2d at 849). The Third Department held that the county had capacity to challenge the statutory provision on state constitutional grounds because the county was "entitled to possession of the fund, which is in possession of another" and the statute did not affect one of the county's governmental powers or duties (see id. at 850). 61 Likewise, in Lawton, the Third Department held that a municipality had capacity to assert a state constitutional claim against the State because it claimed, as does Petitioners here, "entitlement to a specific fund" and, therefore, was asserting its proprietary, as opposed to governmental, rights (Lawton, 128 AD2d at 206). Petitioners here are seeking redress to recover the local share payments that Respondents erroneously took and failed to reimburse as required under Social Services Law § 368-a(1)(h)(i). In fact, Petitioners' proprietary interest here is even more concrete because Respondents admit that DOH took Petitioners ' funds (the overburden local share payments) and placed those funds into "a special bank account maintained by the State Comptroller" (R 436). It is that specific fund in which Petitioners have a proprietary interest, and from which Petitioners' overburden reimbursement should have been paid. Thus, Respondents' admission alone is dispositive of Petitioners' capacity to challenge the retroactive deprivation of Petitioners' vested overburden reimbursement rights. Indeed, the Third Department has held, in a decision affirmed by this Court, that municipalities have a property interest in the overburden funds collected by the State. Specifically, in Matter of Krauskopf v Perales (139 AD2d 147 [3d Dept 1988], affd 74 NY2d 730 [1989]), the Third Department held that the overburden local shares paid by social services districts and held by Respondents constitute a specific fund within the meaning of the exception to the general incapacity rule (id. 62 at 153). The Third Department's decision addressing a local social services district's proprietary interest in the State's specific fund for overburden reimbursement is directly on point here, and conclusively demonstrates that Petitioners have the right to maintain a due process challenge to Section 61. C. Municipalities are "Persons" under the Due Process Clause of the New York Constitution. In an attempt to avoid the waiver of Respondents' capacity defense, the Fourth Department conjured a second step to the municipal capacity test never before applied in New York. The Fourth Department, relying exclusively on a misconstruction of this Court's decision in Jeter, held that even if a municipality can establish that it has capacity to challenge State legislation on constitutional grounds, it must then establish a "substantive right" to raise a due process claim under the New York Constitution (County of Chautauqua, 126 AD3d at 1321, quoting Jeter, 41 NY2d at 287). This Court's reference in Jeter to a municipality's "substantive right" to raise a due process challenge, when viewed in context, however, is a precise reference to the general rule of municipal incapacity under New York law. No legal basis exists to transform this Court's holding in Jeter into a novel pillar of New York constitutional law that a municipality may never assert due process rights vis-a-vis the State merely because it is a political subdivision; indeed, to do so would be to ignore this Court's teachings in Levittown, which was decided five years after Jeter. Had this Court intended Jeter to deprive 63 municipalities of personhood status under the New York Constitution, it clearly would have so held in Levittown (see Levittown, 57 NY2d at 42-47). In Jeter, three municipal entities—the New York City Board of Education and Department of Social Services and the Board of Education of the City of Yonkers sought to challenge a state statute on state and federal constitutional due process and equal protection grounds, among others (see Jeter, 41 NY2d at 287). In rejecting those challenges, this Court held [w]hile these units of municipal government have procedural standing to participate in the present litigation (and thus to be heard, for instance, on questions of statutory interpretation), they do not have the substantive right to raise these constitutional challenges. This is not an instance in which the municipal challengers assert that if they are obliged to comply with the State statute they will by that very compliance be forced to violate a constitutional proscription (id. [citations omitted]). Although this Court's use of the term "substantive right" apparently confused the Fourth Department as to the breadth of this Court's holding, the statement—in the subsequent sentence—that the municipalities did not have the "substantive" right to challenge the state statute because none of the recognized exceptions to the general rule of municipal incapacity applied makes clear that this Court's holding was limited to the municipal capacity doctrine. This Court's holding in Jeter in no way suggests that municipalities may never assert due process rights under the New York Constitution. Indeed, this Court specifically cited Jeter in City of New York as supporting the fourth 64 exception to the general municipal incapacity rule (City of New York, 86 NY2d at 292, citing Jeter, 41 NY2d at 287), and has never construed Jeter as precedent supporting Respondents' contention that municipalities are not "persons" under the New York Due Process and Equal Protection Clauses (see e.g. Levittown, 57 NY2d at 42-47). To the contrary, this Court's precedent establishes that a municipal corporation is in fact a "person" entitled to protection under the Due Process Clause of the New York Constitution (see People ex rel. Rodgers v Coler, 166 NY 1 [1901]) ["The city is a corporation possessing all the powers of corporations generally and cannot be deprived of its property without its consent or due process of law any more than a private corporation can"]; People v Ingersoll, 58 NY 1, 29- 30 [1874]; see also Matter of Crespo, 123 Misc 2d 862, 866 [Sup Ct, New York. County 1984] ["The three putative defendants are municipal and public benefit corporations, As such, each is a person, like any other litigant, entitled to due process of law."]). Subsequent to Jeter, courts have considered municipal claims against the State and its agencies under the Due Process and Equal Protection Clauses of the New York Constitution on the merits, thus acknowledging that municipalities are "persons" under these constitutional provisions (see e.g. Levittown, 57 NY2d at 40; Board of Coop. Educ. Servs. for Sole Supervisory Dist. of Rockland County, 171 Misc 2d at 588 [considering a school district's due process challenge to a state 65 statute on the merits because the claim fell within one of the capacity exceptions]; see also Empire State Ch. of Associated Bldrs. & Contrs., Inc. v Smith, 21 NY3d 309, 315, 322-323 [2013] [considering the merits of a county's challenge to a state statute as unconstitutional in an action against the New York State Department of Labor, including on equal protection and due process grounds, where the county had standing/capacity to challenge the statute on Home Rule grounds, citing Town of Black Brook, 41 NY2d 486]; Town of Oyster Bay v Kirkland, 81 AD3d 812, 817 [2d Dept 2011] [considering merits of cause of action by town against the New York State Division of Human Rights challenging a state statute as unconstitutional for depriving the town of due process rights], affd 19 NY3 d 1035 [2012]; Matter of Town of Wallkill v New York State Bd. of Real Prop. Servs., 274 AD2d 856, 858 [3d Dept 2000] [considering merits of Town's constitutional due process claim]; Matter of Town of Middletown v State Bd. of Real Prop. Servs., 272 AD2d 657, 658 [3d Dept 2000] [in action by town against New York State Board of Real Property Services, considering merits of an argument that the Board failed to afford the town a full, meaningful adjudicatory hearing, in violation of due process]; Matter of Board of Educ. of Union-Endicott Cent. School Dist. v New York State Pub. Empl. Relations Bd., 233 AD2d. 602, 604 [3d Dept 1996] [considering on the merits argument by school district that New York State Public Employees Relations Board deprived the school district of due process]; County of 66 Orange v Public Serv. Commn. of State of N. Y, 39 AD2d 311, 316 [2d Dept 1972] [addressing on the merits a claim by county and towns against the New York State Public Service Commission that a state statute unconstitutionally deprived property owners of adequate notice and an opportunity to be heard, in violation of their due process rights], affd 31 NY2d 843 [1972]). Importantly, New York courts have also expressly recognized that municipalities are entitled to procedural due process when the legislature retroactively shortens a time period to enforce a municipality's existing cause of action (see Town of Newburgh v Chumard, 271 AD2d 597, 598 [2d Dept 2000] [holding that "the plaintiff, a municipal corporation, [was] entitled to the same reasonable time to interpose its claim as is afforded a private litigant" under principles of procedural due process], appeal dismissed 95 NY2d 850 [2000]; Town of Walton v Adair, 96 App Div 75, 80-81 [3d Dept 1904] ["[a] cause of action is property which can only be taken from . . . a town by due process of law"]; see also 2A Carmody-Wait 2d § 13:11 ["[i]n retroactively extending or shortening the period of time for enforcing an existing cause of action, a reasonable time must be allowed after the effective date of the amended or new statute for the enforcement of the available remedy, and this is true whether the litigant seeking to enforce the remedy is a municipal corporation or a private litigant," citing Town of Newburgh 271 AD2d at 598]). The Fourth Department, 67 however, did not address or consider whether, even if a municipality is not entitled to substantive due process protection, a municipality is entitled to a grace period afforded all other litigants when a limitations period is shortened. Its failure to do so was reversible error. If the Fourth Department's holding is permitted to stand, municipalities would be deprived of any due process or equal protection rights under the New York Constitution, regardless of whether the State is a party to the litigation. Such a rule runs contrary not only to New York precedent (see e.g. Levittown, 57 NY2d at 40; Town of Newburgh, 271 AD2d at 598; Rockland County BOCES, 171 Misc 2d at 588), but also to the overwhelming intent of the New York Constitution to safeguard municipal rights (see New York Constitution, Article IX, §§ 1, 2). Thus, contrary to the Fourth Department's holding, it is clear that municipalities, including Petitioners, have and can assert due process rights under the New York Constitution. The Fourth Department orders should be reversed. POINT IV IF THIS COURT ADOPTS THE FOURTH DEPARTMENT'S CONSTRUCTION OF SECTION 61, IT UNCONSTITUTIONALLY IMPAIRS PETITIONERS' VESTED RIGHTS TO REIMBURSEMENT Unlike the Third Department's interpretation of Section 61 to preserve its constitutionality, the Fourth Department's holding that Section 61 implicitly repealed Respondents' mandatory statutory overburden reimbursement duty under 68 Social Services Law § 368-a, for overburden local share payments that were taken from Petitioners prior to January 1, 2006, retroactively deprives Petitioners of vested rights in contravention of the New York Constitution, and cannot stand. Indeed, as the Third Department expressly cautioned in St. Lawrence II, Petitioners' vested rights to overburden reimbursement cannot be abrogated retroactively, even if legislation does so expressly (see St. Lawrence II, 95 AD3 d at 1553-1554). Therefore, should this Court adopt the Fourth Department's interpretation of Section 61, the statute must be declared unconstitutional and void. A. Section 61 Unconstitutionally Deprives Petitioners of their Vested Property Rights to Reimbursement. Section 61 expressly provides that "[n]otwithstanding the provisions of section 368-a of the social services law or any other contrary provision of law, no reimbursement shall be made for social services districts' claims submitted on and after the effective date of this paragraph, for district expenditures incurred prior to January 1, 2006" (R 299). Because Section 61 purports to divest Petitioners of the right to reimbursement that accrued long before Section 61 was enacted, it is an unambiguously retroactive law, and should be viewed with skepticism (see e.g. Matter of Chrysler Props. v Morris, 23 NY2d 515, 521 [1969]). As this Court has aptly noted, "[fl or centuries our law has harbored a singular distrust of retroactive statutes" (James Sq. Assoc. LP v Mullen, 21 NY3d 233, 246 [2013] [internal quotation marks and citation omitted]). The Legislature's 69 authority to enact retroactive laws is substantially constrained (see Alliance of Am. Insurers v Chu, 77 NY2d 573, 585-586 [1991]). Where, as here, a statute retroactively impairs vested rights, a rational basis for the law simply is not enough to sustain it (id. at 586; see Matter of Hodes v Axelrod, 70 NY2d 364, 369-370 [1987]; Franza v Olin, 73 AD3d 44, 46 [4th Dept 2010]). "This doctrine reflects the deeply rooted principles that persons should be able to rely on the law as it exists and plan their conduct accordingly and that the legal rights and obligations that attach to completed transactions should not be disturbed" (Alliance, 77 NY2d at 586). Indeed, " [t]he integrity of the State government, upon which the public is entitled to rely, requires, at the very least, that the State keep its lawfully enacted promises" (id. at 577). Instead, where, as here, a statute retroactively impairs vested rights, "the courts must balance a number of factors, including [1] 'fairness to the parties, [2] reliance on pre-existing law, [3] the extent of retroactivity and [4] the nature of the public interest to be served by the law' to determine whether the rights affected are subject to alteration by the Legislature" (id. at 586, quoting Hodes, 70 NY2d at 369-370). The Appellate Divisions have consistently concluded that Petitioners' right to reimbursement for overburden local share payments is a vested right. In St. Lawrence I, for example, the Third Department explained that "petitioner's right to reimbursement for (Medical Assistance) expenditures accrued" "prior to 2006, 70 upon payment to DOH for services provided to overburden patients for which no local share was owing" (St. Lawrence I, 81 AD3d at 216 [emphasis added]; see also St. Lawrence II, 95 AD3d at 1553). Social Services Law § 368-a(1)(h) provides Petitioners with an immediate property interest in the reimbursement owed by Respondents. Section 61 now purports to retroactively deprive Petitioners of these reimbursements. Just as the Third and Fourth Departments held with respect to the 2010 Amendment, however, Section 61 cannot now "transform these county funds into state property and relieve the state of the legal obligation to return them," because the State "was never entitled to these funds" in the first place (St. Lawrence II, 95 AD3d at 1553 [emphasis added]). Accordingly, Respondents' reliance on Section 61 to deprive Petitioners retroactively of its vested right to reimbursement must fail (see id.). Additionally, New York courts consistently uphold vested rights against retroactive abrogation in circumstances similar to this case. For example, in Alliance, this Court invalidated an amendment to the Insurance Law because the amendment retroactively deprived the plaintiffs—a number of insurance companies, trade associations, and individual insurance policy holders of their constitutionally protected "property rights" in the earnings of a statutorily-created Property and Liability Insurance Security Fund to which they had previously contributed (Alliance, 77 NY2d at 577-578). Specifically, the Court held that, with 71 respect to "contributions already made," the State could not extinguish the contributors' property rights by "repealing the provision which [gave] rise to [them]" (id. at 585). Respondents concede that that is precisely what Section 61 purports to accomplish, and thus it too must fail (see James Square Associates LP, 21 NY3d at 250). B. Petitioners' Vested Rights to Overburden Reimbursement Are Not Subject to Retroactive Impairment. To avoid the clear retroactive deprivation of Petitioners' vested rights, Respondents argued below that the balancing test articulated by this Court in Alliance (77 NY2d at 578) and Hodes (70 NY2d at 369-370) weighs in favor of Section 61's constitutionality, because (1) Petitioners should have calculated and submitted reimbursement claims (notwithstanding Respondents' admission that Petitioners were not required to do so); (2) Petitioners received post-2006 benefits under the Medicaid Cap Statute (notwithstanding that these benefits are entirely separate from the pre-2006 overburden reimbursements that Respondents unlawfully withheld from Petitioners for approximately three decades); (3) Petitioners misinterpreted the law regarding its statutory right to reimbursement (notwithstanding that numerous courts, including both the Third and Fourth Departments, repeatedly confirmed Petitioners' interpretation and rejected Respondents' attempts to avoid the State's longstanding and undisputed reimbursement debt); and (4) Petitioners' vested right to reimbursement is 72 outweighed by the State's interest in fiscal certainty—that is, allowing the State to extinguish its outstanding debts by legislative fiat whenever it no longer desires to pay (notwithstanding that this Court has held that the State's budgetary concern is not a "valid public purpose" for retroactive application of a statute) (Resps' Br., at 18-31). Contrary to Respondents' assertions below, the balance of the factors articulated in Alliance clearly supports Petitioners' position that Section 61 cannot be retroactively applied to extinguish Petitioners' vested rights to reimbursement. 1. Section 61 is Manifestly Unfair. The fairness factor significantly favors Petitioners. Petitioners have been deprived of reimbursements that they were statutorily entitled to receive, solely due to Respondents' actions in (1) refusing to calculate and pay Petitioners' statutorily-mandated reimbursements, (2) utilizing dilatory tactics, including relying on baseless legal arguments, to avoid paying Petitioners' claims, (3) withholding critical documents to permit Petitioners to identify overburden- eligible individuals for whom reimbursement was not paid, and (4) at the same time, fervently advocating for an amendment to the law to intentionally eradicate Petitioners' entitlement to reimbursement. Inasmuch as the State has absolutely no authority to impair its own debts after-the-fact merely because it no longer desires to pay the total reimbursement liability that is owed, Respondents' actions were fundamentally unjust. 73 Had Respondents calculated and paid the reimbursements to Petitioners in a timely fashion, as they were required to do all along, Petitioners would not have been aggrieved at the time that Section 61 was adopted. It was only due to Respondents' own failures that Petitioners' rights were impacted by Section 61. As an agency with (1) a 54 billion budget, (2) a workforce of highly skilled workers who understand the Medical Assistance program, and (3) a sophisticated computer system that houses all of the documents needed to calculate the reimbursement payments owed, Respondents were entirely capable of satisfying their statutory duty and calculating and paying the total reimbursements to Petitioners (see R 488-490, 510). In fact, DOH was the only one in a position to make the calculation. As a result, to apply Section 61 to deprive Petitioners of their vested rights would be inequitable, and would establish a dangerous precedent for the State to avoid its lawfully incurred obligations by legislating away its debts whenever it unilaterally decides that full payment is no longer in its own interests. Below, Respondents argued that Section 61 was fair by pointing to benefits that Petitioners have received since 2006 under the Medicaid Cap Statute. These post-2006 benefits, however, are entirely irrelevant to the reimbursements Respondents owe Petitioners under Social Services Law § 368-a for pre-2006 overburden payments that Petitioners made on Respondents' behalf. As explained 74 more fully below, the Medicaid Cap Statute, which did not become effective until January 2006, is a prospective statute that affects only the manner in which Respondents' post-2006 obligations to Petitioners are paid (see Point IV[111[3], infra). Respondents' pre-2006 obligations to Petitioners remain governed by Social Services Law § 368-a—a statute that was adopted in 1984 and has not been repealed. Therefore, the Medicaid Cap Statute only impacts Petitioners' ability to submit claims to recoup overburden local share payments made after January 1, 2006, when the Medicaid Cap Statute became effective (see St. Lawrence I, 81 AD3d at 214-216). Respondents' reliance on the purported benefit of the Medicaid Cap Statute also is misplaced since there is no dispute that they failed to include the unpaid overburden reimbursement in Petitioners' 2005 base year Medicaid Cap calculation. This means that, from the implementation of the Medicaid Cap in 2006 to date, Petitioners have paid significantly more than they should have in Medical Assistance expenses each year and will continue to do so unless and until the cap is properly recalculated (R 501-503, 507-508). Respondents will continue to receive the annual benefit of the miscalculation regardless of this Court's decision regarding the pre-2006 reimbursement. Respondents have further benefitted, at Petitioners' expense, by failing to credit Petitioners and the counties with an enormous sum of overburden reimbursement accruing each year to date. 75 Again, both of these windfalls could have been remedied by a simple program to identify and properly code overburden recipients. Respondents, however, chose not to fix that problem. Respondents' contention below that Petitioners purportedly receive certain protections under the Cap Statute that render Section 61 "fair" is entirely irrelevant. For example, Respondents asserted that the Cap "shields" Petitioners from contributing to judgments rendered in favor of providers (Resps' Br., at 23). Respondents fail to cite any authority in support of this statement which, in any event, is a completely speculative benefit that could not possibly compensate Petitioners and the counties for the millions that Respondents have unlawfully withheld. Respondents' further suggestion below that the legislative process leading up to the enactment of Section 61 was all the process due to Petitioners is simply incredible. First, there is absolutely no proof in the record to support Respondents' contention below that Petitioners and other counties "lobbied vigorously against the 2012 amendment" (Resps' Br., at 24). Second, Respondents' contention below that, in a two and a half-month period between introduction and enactment, Petitioners and the other counties could have somehow identified all overburden- eligible individuals for whom they were not reimbursed and used this information to submit unnecessary claims to DOH (Resps' Br., at 27), wholly ignores 76 Respondents' (1) own contention that these reimbursements are purportedly "unknown and unknowable" (R 433); (2) repeated complaints regarding the burdens of calculating these amounts (R 449); (3) failure to accomplish this task despite having approximately thirty years to do so; and (4) vigorous denial of all such reimbursement claims during that two-and-a-half-month period. Indeed, this Court has specifically rejected Respondents' argument that the period between a statute's introduction and effective date can suffice as a constitutionally adequate grace period (see Gilbert, 159 NY at 123-124). Respondents' unsupported claim below that due process has been satisfied because Petitioners purportedly have been able to submit the allegedly "stale" claims for reimbursement since the 1990s (Resps' Sr., at 20-21), similarly should be rejected. Respondents again attempt to improperly shift their clear statutory burden of reimbursement onto Petitioners. As the Third Department expressly recognized in St. Lawrence III and St. Lawrence I, Petitioners had no obligation to submit claims for reimbursement, and have only been compelled to do so due to the State's failures (see St. Lawrence III, 124 AD3d at 94 r"DOli was required to pay those reimbursements even without any claims being made, and should have done so by 2006.1; St. Lawrence I, 81 AD3d at 218 n 2). Moreover, Respondents have delayed for decades in calculating and paying the reimbursement indisputably owed to Petitioners, and were the only ones capable of actually identifying the 77 dropped codes, uncoded recipients, and unpaid reimbursement in the first place (R 479-480, 499-500, 894-895). Thus, absent identification by Respondents of the uncoded individuals and disclosure of the relevant records, it was impossible for Petitioners and the counties to identify all the unpaid overburden reimbursement. 2. Petitioners Properly Relied on Their Clear Entitlement to Overburden Reimbursements Under Social Services Law § 368-a. The reliance factor similarly weighs heavily in Petitioners' favor. Reliance is analyzed at the time the local share payments were made by Petitioners to Respondents. Prior to 2006, it was entirely reasonable for Petitioners to rely on the plain language of Social Services Law § 368-a, which expressly states that Respondents shall reimburse Petitioners for all overburden local share payments (see Social Services Law § 368-a[1][h][i]). Petitioners' interpretation of the law was repeatedly confirmed by the Third and Fourth Departments (see St. Lawrence II, 95 AD3d at 1553; County of Niagara v Daines, 91 AD3d at 1289; St. Lawrence I, 81 AD3d at 216; County of Herkimer v Dailies, 60 AD3d at 1457). Thus, Respondents' contention below that Petitioners had "ample forewarning that [their] claims might be extinguished" (Resps' Br., at 25) is meritless. In any event, it would not have been reasonable at any time for Petitioners to expect that the State, after taking the overburden local share payments, would simply refuse to pay its creditors. The State lacks the authority to simply abrogate its own debts whenever it determines it no longer desires to pay them, especially 78 when doing so deprives Petitioners of their vested rights to reimbursement (see e.g. O'Neil v State of New York, 223 NY 40, 43-44 [1918]; see also Rhern v Malcolm, 507 F2d 333, 341 n 20 [2d Cir 1974]). Respondents cannot justify this unabashed attempt to extinguish their prior debts to Petitioners by citing their own erroneous interpretations of the Medicaid Cap Statute and 2010 Amendment, which were properly rejected by all courts that have considered them. Respondents' suggestion below that, to avoid Respondents' own baseless attempts to eradicate the State's overburden reimbursement liability, Petitioners should have submitted reimbursement claims simply defies logic. As the Third Department explicitly recognized, Petitioners had no obligation to submit claims, or to take "any action to receive reimbursement for overburden expenses" from DOH (see St. Lawrence I, 81 AD3d at 214 [emphasis added]). In fact, DOH' s Deputy Director for Administration admits that Petitioners have no obligation to submit reimbursement claims (R 449). Respondents admit, instead, that it was Respondents' responsibility to "identif[y] those Medicaid recipients who were mentally disabled under the applicable overburden criteria" (R 437; see R 449, 465). Respondents have failed to satisfy this responsibility for decades and, in fact, still have no intention of doing so, to the further expense of Petitioners and the counties (see R 449-451). Even if it was Petitioners' duty to calculate the reimbursements and submit claims (which it is not), Petitioners were never 79 provided with all the information they would need from DOH in order to make these calculations and, due to Respondents' suspension of claim processing in April 2005, Petitioners were denied the opportunity to submit reimbursement claims (R 41, 490, 503-504). Simply stated, Petitioners' actions or inactions since 2006 are irrelevant. Since 2005, there has not been a single instance when Respondents paid an overburden reimbursement claim without being compelled to do so through litigation, including during the two and a half months between Section 61's proposal and effective date that Respondents tout as a "grace period." Thus, Petitioners' reliance on the express reimbursement obligation contained in Social Services Law § 368-a, which still has not been repealed to date, when paying the overburden local share payments to Respondents prior to 2006 was entirely reasonable. 3. The Extent of Section 61's Retroactivity is Excessive. The retroactivity factor also tips in Petitioners' favor. Section 61 is expressly and intentionally retroactive. Respondents have persistently argued that Section 61 is and was intended to be expressly retroactive, and seeks to deprive Petitioners and other counties, in 2012, of reimbursement for payments taken and concealed by Respondents as far back as 1984 (R 447, 450). Inasmuch as 80 Respondents argue that Section 61 extinguishes over 30 years of overburden reimbursement liability, it is unquestionably significantly retroactive. Below, Respondents sought to avoid the expressly retroactive language of Section 61 by claiming that it merely "clarifies" that the Medicaid Cap—a wholly separate statute, which first went into effect on January 1, 2006—retroactively extinguishes Petitioners' vested rights to reimbursement for overburden payments taken by Respondents prior to January 1, 2006 (Resps' Br., at 27-29). To "clarify," however, means to make plain something that already exists, but is ambiguous (see Merriam-Webster's Collegiate Dictionary, at 228 [11th ed 2004] [defining "clarify" as "to free of confusion" or "to make understandable"]). The Legislature cannot "clarify" that, contrary to the holdings of the Third and Fourth Departments, the Medicaid Cap Statute is retroactive when the statute was not made retroactive in the first instance. By its very terms, the Medicaid Cap Statute is effective as of January 1, 2006 and, therefore, applies only to expenditures incurred from January 1, 2006 forward (see Dorfman v Leidner, 76 NY2d 956, 959 [1990]). The statute contains no language, much less a clear expression of intent, indicating that it should be applied retroactively, nor does it even mention the overburden obligation. In fact, the Medicaid Cap Statute is loaded with prospective terms indicating that it can only be applied going forward (see e.g. L 2005, ch 58, part C, § 1 [c] 81 "[c]ommeneing with the calendar year beginning January 1, 2006, calendar year social services district medical assistance expenditure amounts for each social services district shall be calculated by multiplying the results of the [cap] calculations" [emphasis added]). Further, in the prior overburden litigations, the Third and Fourth Departments extensively analyzed this language and the legislative history underlying the Medicaid Cap Statute, and each time concluded, contrary to Respondents' suggestion, that the prior enactment was not intended to retroactively deprive Petitioners of their vested rights to reimbursement (see St. Lawrence I, 81 AD3d at 215; County of Herkimer v Daines, 60 AD3d at 1457). In fact, all of the courts that have considered the language and legislative history of the Medicaid Cap Statute have reached the same conclusion: the Medicaid Cap Statute did not supplant the provisions of Social Services Law § 368-a as it pertains to overburden payments made prior to 2006. Respondents do not, and cannot, point to any language or legislative history of the Medicaid Cap Statute that supports their argument that a retroactive impairment of Petitioners' vested rights to reimbursement was intended all along (see Thomas, 63 NY2d at 154-155 [after reviewing the legislative history, and finding an "absence of clear legislative indication that the statute be applied retrospectively," determining that statute should not be given retroactive 82 application]). Instead, Respondents solely rely on the legislative history of Section 61, a separate statute, to support their interpretation. Respondents suggest that the Legislature's Memorandum in Support of Section 61 indicates that the intent of Section 61 was to "clarify" that the Legislature previously extinguished Petitioners' statutory right to reimbursement. The Legislature's purported "clarification," however, is entirely inconsistent with the intended prospective application of the Medicaid Cap Statute; as such, Section 61 cannot have merely "clarified" the Legislature's original intent. A "'clarifying' amendment . cannot retroactively declare a different legislative intent contrary to the plain meaning of the earlier law" (Boltja v Southside Hosp., 186 AD2d 774, 775 [2d Dept 1992]; see also Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293, 304 [1961]; Matter of Island Waste Servs., Ltd. v Tax Appeals Trib. of State of N.Y., 77 AD3d 1080, 1083 n 2 [3d Dept 2010], lv denied 16 NY3d 712 [2011]). Thus, the Legislature's belated pronouncement of its purported prior intent in support of Section 61 is wholly ineffective to change the plain, unambiguous language of the Medicaid Cap Statute (see Roosevelt Raceway, 9 NY2d at 304 ["(t)he Legislature has no power to declare, retroactively, that an existing statute shall receive a given construction when such a construction is contrary to that which the statute would ordinarily have received"]; Boltja, 186 AD2d at 775; Island Waste Servs., 77 AD3d at 1083 n 2). 83 Moreover, even assuming, arguendo, that Respondents were correct that Section 61 is a clarifying amendment (which, again, it is not), Section 61 would overturn the precedent of numerous courts across the state, merely to clarify that the Medicaid Cap Statute unconstitutionally deprives Petitioners of their preexisting rights to reimbursement under Social Services Law § 368-a. Notably, Respondents do not, and cannot, point to any case where an amendment clarifying that a prior statute was intended to abrogate a preexisting right has been upheld as constitutional. Under Respondents' construction, the Medicaid Cap Statute fares no better than Section 61, because the Medicaid Cap, which went into effect on January 1, 2006, also would retroactively impair Petitioners' vested rights to reimbursement for overburden payments. As the Third and Fourth Departments have held, at the time that the Medicaid Cap went into effect, Petitioners' right to reimbursement under Social Services Law § 368-a had already vested (see St. Lawrence I, 81 AD3d at 216; County of Herkimer v Daines, 60 AD3d at 1457). Therefore, even if Section 61 merely clarifies that the Medicaid Cap Statute unconstitutionally impairs Petitioners' vested rights to reimbursement for overburden payments, Section 61 cannot have a rational basis and should be invalidated by this Court. 84 The Public Interest Requires Reimbursement of the Improperly Retained Overburden Payments to Petitioners. Respondents claim that the purported public interest served by the law is to provide the State with certainty that it can avoid its overdue debts (see Resps' Br., at 30-31). There is no authority in support of this purported interest because it is not the type of overriding public interest that is compelling enough to deprive Petitioners of their constitutionally protected property rights. To the contrary, this Court recently held that the State's budgetary concern is not a "valid public purpose" for retroactive application of a statute (James Sq. Assoc., 21 NY3d at 249-250). This Court similarly rejected the State's "enhancement of [its] general revenues" as a basis for retroactive application of a statute — stating that it was "self-evident that this [interest] cannot justify the State's actions" (Alliance, 77 NY2d at 589 [emphasis added]). Furthermore, here, permitting Respondents to avoid their clear statutory obligation to reimburse Petitioners would disserve the public interest, because it would encourage DOH and other agencies to (1) avoid timely compliance with their statutory obligations; (2) engage in dilatory tactics, including interminable litigation, to frustrate these obligations; and (3) lobby the Legislature to retroactively change any statutes with which they do not wish to comply, without providing any notice to those affected, in hopes that the agencies could ultimately avoid their obligations entirely. 85 In order to serve the true public interest here, Respondents must be compelled to reimburse Petitioners' overburden payments to the county taxpayers from whom they were improperly taken. Thus, inasmuch as the balance of the factors set forth in Alliance weighs heavily in favor of preserving Petitioners' vested rights against Section 61's attempt at retroactive extinguishment, this Court should declare Section 61 unconstitutional to the extent necessary. POINT V PETITIONERS ARE ENTITLED TO MANDAMUS TO COMPEL RESPONDENTS TO SATISFY THEIR REIMBURSEMENT DUTY PURSUANT TO SOCIAL SERVICES LAW 4 368-A Mandamus "lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought" (Klostermann v Cuomo, 61 NY2d 525, 539 [1984]). Under Social Services Law § 368-a, Petitioners have a "clear legal right" to reimbursement for "one hundred per centum of the amount expended for medical assistance for those individuals who are eligible" (Social Services Law § 368-a[1][h][i] [emphasis added]). It cannot be disputed that Respondents have unreasonably withheld these reimbursements from Petitioners in derogation of Petitioners' statutory rights. Respondents argued below that they were barred from performing their mandatory reimbursement duty under Social Services Law § 368-a because Section 61 provided a clear mandate to DOH forbidding the payment of 86 overburden reimbursement. Whether this Court adopts the Third Department's interpretation of Section 61 as a statute of limitations or the Fourth Department's interpretation and declares Section 61 unconstitutional, no barrier to Respondents' mandatory reimbursement duty exists. Indeed, as the Third Department held in St. Lawrence III, "DOH's statutory obligation to make reimbursement for these expenditures is mandatory and ministerial and does not involve any discretion" (St. Lawrence III, 124 AD3d at 94 [citation omitted]). Therefore, because Social Services Law § 368-a has not been repealed, and Section 61 may only be construed as a statute of limitations extinguishing a remedy to recover overburden reimbursement, but not the underlying statutory right (see id. at 92 ["we have herewith determined that the amendment did not extinguish petitioner's substantive right to reimbursement; the amendment only prevents petitioner from obtaining any remedy in relation to that right after a certain date" j), Petitioners are entitled to mandamus relief compelling Respondents to identify, verify, and pay the total unpaid overburden expenditures that Petitioners incurred prior to 2006. Respondents alternatively argued below that mandamus relief does not lie because DOH has the discretion to review and deny overburden reimbursement claims that do not meet the set reimbursement criteria. This Court in Klostermann, however, rejected this precise argument. In Klostermann, the plaintiffs sought mandamus relief compelling the State to comply with its mandatory duty under 87 Mental Hygiene Law § 29.15 to prepare a "written service plan" for each patient being released from a State psychiatric institution (Klostermann, 61 NY2d at 532- 533). As here, the State opposed that relief arguing that mandamus did not lie because executing its statutory duty to prepare the written service plans was an activity "replete with decisions involving the exercise of judgment or discretion" (id. at 539). Although this Court agreed that preparing the actual plans inarguably involved discretion, that fact was insufficient to deny mandamus relief compelling the State to prepare the plans in the first place as mandated by the Mental Hygiene Law (see id. at 539-541). Specifically, this Court held: Defendants argue that preparing written service plans and creating follow-up programs are activities replete with decisions involving the exercise of judgment or discretion. This is inarguably true. What must be distinguished, however, are those acts the exercise of which is discretionary from those acts which are mandatory but are executed through means that are discretionary . , . What has been somewhat lost from view is this function of mandamus to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so. "[T]lie writ of mandamus . . may also be addressed to subordinate judicial tribunals, to compel them to exercise their functions, but never to require them to decide in a particular manner . . This principle applies to every case where the duty, performance of which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion, irrespective of the general character of the officer or body to which the writ is addressed. A subordinate body can be directed to act, but not how to act, in a manner as to which it has the right to exercise its judgment. The character of the duty, and not that of the body or officer, determines how far performance of the duty may be enforced by mandamus. Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though 88 it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be" (id. at 539-540 [emphasis in original], quoting People ex rel. Francis v Common Council of City of Troy, 78 NY 33, 39 [1879]). As in Klostermann, Petitioners here sought mandamus relief compelling Respondents to satisfy their mandatory duty under Social Services Law § 368-a to calculate and pay Petitioners the total remaining overburden reimbursement outstanding. Although DOH' s act of initially setting the criteria under which an individual was deemed overburden-eligible may have involved discretion, Respondents' obligation to reimburse Petitioners upon determining that an individual for whom Petitioners paid a local share satisfies that eligibility criteria is in no way discretionary. In fact, according to DOW s own Medicaid Reference Guide Manual, Respondents must find that an individual is overburden-eligible if he or she meets one of the following factual criteria: (I) resides in a Residential Treatment Facility certified by the New York State Office of Mental Health or in an Intermediate Care Facility for the Developmentally Disabled certified by the New York State Office for People with Developmental Disabilities; (2) was discharged from a New York State Office of Mental Health Psychiatric Center or New York State Office for People with Developmental Disabilities Developmental Center from April 1, 1971 to December 31, 1982 and has 90 or more cumulative days of inpatient treatment; (3) resides in a community-based facility as certified by the New 89 York State Office of Mental Health or the New York State Office for People with Developmental Disabilities. This includes AIRS who: have received services in certified Community Residences (CR) or Individual Residential Alternatives (IRA); are residents of schools certified by the New York State Office for People with Developmental Disabilities; are inpatients in Terrance Cardinal Cook (Flower Hospital); or (4) receives a minimum of 45 visits in any calendar quarter of day or continuing day treatment programs (including Subchapter A day treatment) (R 953). The overburden eligibility criteria afford Respondents absolutely no discretion to determine that a certain individual is not overburden-eligible where the factual circumstances surrounding that individual's medical care satisfy the criteria. Simply put, once the factual predicate for overburden eligibility is established as provided under the Medicaid Reference Guide Manual, reimbursement is necessary under Social Services Law § 368-a(1)(h)(i) and Respondents have absolutely no discretion to avoid it (see e.g. Matter of Brusco v Braun, 84 NY2d 674, 680 [1994] [granting mandamus to compel where the two factual predicates of the statutory duty had been satisfied and holding that, in that case, "respondent has no discretion; judgment in favor of petitioner must be 90 granted and mandamus lies to compel respondent to do that which the statute requires"]; Matter of County of Fulton v State of New York, 76 NY2d 675, 678 [1990] [granting mandamus to compel payment of assessments where statute expressly provided that assessments "shall be paid by the river regulating district"]). Petitioners do not seek reimbursement for any individual that does not satisfy DOH' s set overburden criteria. Petitioners also do not seek to compel Respondents to undertake any specific method for satisfying their statutory reimbursement obligation, establish a particular amount owed to Petitioners, or reach a specific conclusion. Petitioners merely seek to require Respondents to forgo any further dilatory tactics, fulfill their statutory duty, and resolve the outstanding overburden reimbursement liability to Petitioners once and for all. Petitioners are therefore entitled to mandamus compelling Respondents to calculate and pay Petitioners the total remaining overburden reimbursements owed in accordance with Social Services Law § 368-a. POINT VI RESPONDENTS ARE LIABLE FOR CONVERSION AND UNJUST ENRICHMENT AND THIS COURT SHOULD IMPOSE A CONSTRUCTIVE TRUST OVER THE UNPAID OVERBURDEN REIMBURSEMENT FUNDS Finally, should this Court hold that Petitioners are not entitled to mandamus relief, an independent tort basis exists upon which Petitioners may still be granted 91 the overburden reimbursements owed. The Fourth Department erroneously affirmed the dismissal of Petitioners' conversion, unjust enrichment, and constructive trust claims "for reasons stated in the decision at Supreme Court, Jefferson County" (County of Chautauqua, 126 AD3d at 1322). The only reasoning provided by Supreme Court, Jefferson County for denying Petitioners' tort claims was that, although the causes of action were "innovative," they could not "be applied against the State of New York or a State agency" (Jefferson R 43- 46). Thus, the only justification provided by the Fourth Department for denying Petitioners' tort claims was that tort claims cannot be maintained against the State or its agencies (id.). Respondents, however, are not immune from liability for conversion, unjust enrichment, and constructive trust claims (see e.g. Parsa v State of New York, 64 NY2d 143, 148 [1984] [collecting cases]; Ford Motor Credit Co. v State of New York, 219 AD2d 202, 204 [3d Dept 1996] [constructive trust], lv denied 88 NY2d 813 [1996] ; Robert R. Gibbs, Inc. v State of New York, 70 AD2d 750, 750 [3d Dept 1979] [conversion]; 230 Park Ave. Assoc. v State of New York, 165 Mist 2d 920, 923, 926 [Ct Cl June 21, 1995] [unjust enrichment]). As demonstrated below, Petitioners satisfied each of the elements of these claims based on Respondents' refusal to reimburse Petitioners for the overburden local share payments drawn from county funds that Respondents unlawfully retained for their own use. As a result, this Court should reverse the Fourth Department orders. 92 A. Respondents are Liable for Conversion. Respondents' unlawful retention of Petitioners' reimbursements is a textbook case of conversion. Instead of reimbursing the funds to Petitioners, which were raised through county property and sales taxes, Respondents retained the overburden local share payments for their own benefit, contrary to the express dictates of Social Services Law § 368-a. Respondents are therefore liable for conversion. As this Court has held, conversion is "the 'unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights' (Thyroff v Nationwide Mut. Ins. Co., 8 NY3d 283, 288-289 [2007], quoting State of New York v Seventh Regiment Fund, Inc., 98 NY2d 249, 259 [2002]). The key elements of conversion are: "(1) plaintiff's possessory right or interest in the property and (2) defendant's dominion over the property, or interference with it, in derogation of plaintiff's rights" (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 50 [2006] [citations omitted and emphasis added]). A conversion claim may be based on money, so long as the money is specifically identifiable and there is an obligation to return it or treat it in a particular manner (see Key Bank of N.Y. v Grossi, 227 AD2d 841, 843 [3d Dept 1996]; Brennan's Bus Serv. v Brennan, 107 AD2d 858, 860 [3d Dept 1985]). Further, when funds are provided for a particular purpose, the use of those funds 93 for an unauthorized purpose may constitute conversion (see Lemle v Lemle, 92 AD3d 494, 497 [1st Dept 2012]; Thys v Fortis Securities LLC, 74 AD3d 546, 547 [1st Dept 2010]; Meese v Miller, 79 AD2d 237, 243 [4th Dept 1981]). Petitioners have a clear possessory right to the overburden local share reimbursements under Social Services Law § 368-a(1)(h)(i). Respondents have withheld and retained the funds that should have been used to reimburse Petitioners, and are presently interfering with Petitioners' possessory right to the specifically identifiable overburden reimbursement funds by unlawfully denying all of Petitioners' claims for reimbursement (R 90-91). Moreover, as the Third Department has explicitly found, Respondents have used the county tax funds collected from Petitioners for purposes other than reimbursing Petitioners— namely, to satisfy their own obligations under the Social Services Law (see St. Lawrence II, 95 AD3d at 1553 ["(S)ince 1982, it has been the state's statutory obligation to pay the county share for Medicaid expenditures incurred in providing medical services to certain mentally disabled individuals. While the state, and not the county, has been obligated to pay for these medical services, it has continued to charge petitioner for these expenses and used these funds to satisfy its obligations under this statute."]). Accordingly, Respondents are liable for conversion of Petitioners' property by unlawfully detaining, interfering with, and improperly using the overburden local share funds that must be paid to Petitioners as 94 reimbursement, in accordance with Social Services Law § 368-a(1)(h)(i). B. Respondents are Unjustly Enriched at Petitioners' Expense. Under well-established New York law, "[a] person who has been unjustly enriched at the expense of another is required to make restitution to the other" (Blue Cross of Cent. N.Y. v Wheeler, 93 AD2d 995, 996 [4th Dept 1983] [internal quotation marks omitted]). To establish unjust enrichment, Petitioners need only show that (1) Respondents were enriched (2) at Petitioners' expense, and (3) that permitting Respondents to retain what Petitioners seeks to recover would be "against equity and good conscience" (Land Man Realty, Inc. v Weichert, Inc., 94 AD3d 1221, 1222-1223 [3d Dept 2012]; State of New York v International AsSet Recovery Corp., 56 AD3d 849, 852 [3d Dept 2008]). Here, each of the elements of unjust enrichment are easily satisfied. Respondents were enriched by unlawfully retaining the overburden reimbursement that they were statutorily required to pay to Petitioners. By depriving Petitioners of the reimbursement funds to which they are entitled, Respondents' enrichment was certainly at Petitioners' expense. Petitioners have yet to receive the outstanding reimbursements, and have suffered economically as a result. Moreover, permitting Respondents to retain the reimbursements would be "against equity and good conscience," because it would permit the State to abrogate its undisputed debts to Petitioners unilaterally, years after the overburden 95 local share payments were made in reliance on the 100 percent reimbursement obligation contained in Social Services Law § 368-a(1)(h)(i), without any legal justification whatsoever. Indeed, notwithstanding the clear language of Social Services Law § 368-a, Respondents have repeatedly refused to acknowledge their liability for the overburden reimbursements, and engaged in several tactics to avoid the payments (R 91-92). Even after numerous court decisions reaffirmed their statutory obligations, Respondents continued to assert meritless defenses while concealing the amount of their liability (id.). Throughout this time period, Respondents have enjoyed the benefit of retaining the county reimbursement funds solely at Petitioners', the other counties', and the county taxpayers' expense (R 92). To allow Respondents—after years of unjustifiably withholding the payments and years of concealing their liability—to now wholly avoid the obligation, based on a retroactive statute intentionally designed to abrogate the State's longstanding and undisputed debt, would be fundamentally unfair. Thus, Respondents are similarly liable to Petitioners for unjust enrichment. C. The Fourth Department Erroneously Declined to Impose a Constructive Trust Over the Overburden Reimbursement Funds Owed to Petitioners. A constructive trust is an equitable device used to prevent unjust enrichment (see Simonds v Simonds, 45 NY2d 233, 242 [1978]; Sharp v Kosmalski, 40 NY2d 119, 121 [19761). Specifically, it is "'the formula through which the conscience of 96 equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee"' for the rightful owner (Simonds, 45 NY2d at 241, quoting Beatty v Guggenheim Exploration Co., 225 NY 380, 386 [1919] [Cardozo, Indeed, "[t]he doctrine of constructive trust is . . given broad scope to flex in response to all human implications of the transaction, to remedy whatever knavery ingenious wrongdoers can invent, to give expression to the conscience of equity, and to satisfy the demands of justice" (Nastasi v Nastasi, 26 AD3d 32, 38 [2d Dept 2005]). This Court has set forth four factors to establish entitlement to a constructive trust (see Simonds, 45 1\ Y2d at 241). These factors include: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (Cinquemani v Lazio, 37 AD3d 882, 882 [3d Dept 2007]; Henness v Hunt, 272 AD2d 756, 757 [3d Dept 2000]). Although these factors are useful in many cases, they are simply flexible guidelines, and are not rigidly applied (Simonds, 45 NY2d at 241; see Enzien v Enzien, 96 AD3d 1136, 1137 [3d Dept 2012]; Thomas v Thomas, 70 AD3d 588, 591 [1st Dept 2010] [stating that courts "have not applied a rigid standard when identifying relationships that can be the predicate for imposition of a constructive trust"]; Moak v Raynor, 28 AD3d 900, 902 [3d Dept 2006]). Instead, "[a]s an equitable remedy, a constructive trust 97 may be imposed whenever necessary to satisfy the demands of justice" (Cinquemani, 37 AD3d at 882 [emphasis added]), including against Respondents. Petitioners and Respondents are in a confidential or fiduciary relationship in jointly administering the Medical Assistance program that ensures that certain mentally disabled individuals receive the medical care that they need (R 92). As a result of this relationship, Respondents have an array of fiduciary obligations to local social services districts, such as Petitioners, that include duties of full disclosure, fair dealing, and the provision of instruction and training on all aspects of Medical Assistance laws, regulations, practices, and procedures (id). Under Social Services Law § 368-a, Respondents unequivocally promised to reimburse Petitioners for all Medical Assistance payments that it made on DOH's behalf (Social Services Law § 368-a[1][h][1] ["There shall be paid to each such district . . . Beginning January first, nineteen hundred eighty-four, one hundred per centum of the amount expended for medical assistance for those individuals who are eligible pursuant to section three hundred sixty-six of this article as a result of a mental disability . . . after first deducting therefrom any federal funds properly received or to be received on account thereof." (emphasis added)]; see also 18 NYCRR § 635.1[b]). Petitioners reasonably relied on this unambiguous statutory promise of reimbursement in making the overburden local share payments. Yet, Respondents have failed to ensure that proper overburden reimbursement payments 98 were identified and paid to Petitioners, knowingly denied their liabilities, and failed to competently discharge their duties to Petitioners. By failing and refusing to reimburse Petitioners for the overburden local share payments made on behalf of DOH, in accordance with the unambiguous mandate of section 368-a, Respondents have unlawfully detained and have been unjustly enriched at Petitioners' expense by the total amount of overburden reimbursement owed to Petitioners. Accordingly, this Court should impose a constructive trust over the funds unlawfully retained by Respondents. D. The Court of Claims Lacks Jurisdiction Over Petitioners' Tort Claims. Respondents argued below, for the first time on appeal, that the Court of Claims has exclusive jurisdiction over Petitioners' claims for conversion, unjust enrichment, and constructive trust because the claims seek damages incidental to the equitable relief sought by Petitioners in these proceedings. However, Respondents' surface analysis of Supreme Court's jurisdiction over Petitioners' claims cannot withstand scrutiny. Although the Court of Claims generally has exclusive jurisdiction over actions for money damages against the State (see Matter of Gross v Perales, 72 NY2d 231, 235-236 [1988]), an analysis of Court of Claims jurisdiction is not as simple as Respondents would make it seem. Indeed, because the Court of Claims has "no jurisdiction to grant strictly equitable relief," and may only grant incidental 99 equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract, or tort cases (City of New York v State of New York, 46 AD3d 1168, 1169 [3d Dept 2007], lv denied 10 NY3d 705 [2008] [citation and quotation marks omitted]; see Feuer v State of New York, 101 AD3d 1550, 1551 [3d Dept 2012]; Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997]), the threshold question to determine Court of Claims jurisdiction is "`[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim' (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005], quoting Gross, 72 NY2d at 236). As the Court of Claims has held, (1) A money claim is incidental to relief sought in an Article 78 proceeding if a natural or automatic result of a favorable determination on the issues would be reimbursement, restitution or payment of the sums in question, without the necessity of a separate judicial order or direction, and (2) a money damage claim is incidental to relief sought in an Article 78 proceeding when, in order to award the money judgment, the court must engage in the type of inquiry and analysis that is appropriate to such a proceeding and inappropriate to an action at law (Safety Group No. 194 v State of New York, Claim No. 101826, 2001 WL 939747 [Ct CI Apr. 11, 2001], affd sub nom. Safety Group No. 194---New York State Sheet Metal Roofing & A.C. Contractors Assn. v State of New York, 298 AD2d 785 [3d 100 Dept 2002]). Court of Claims jurisdiction, thus, is "dependent upon the facts and issues presented in a particular case" (Gross, 72 NY2d at 236). The second inquiry to determine jurisdiction, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination (see id.). The Court of Claims lacks subject matter jurisdiction to entertain such claims, which are properly brought only in Supreme Court in a CPLR Article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991]; see e.g. Hoffman v State of New York, 42 AD3d 641, 642 [3d Dept 2007] ["although claimant contends that her claim is for breach of contract, our review of the record indicates that she primarily is seeking to annul the Comptroller's administrative decision to issue a check that deducted the amount of unemployment insurance benefits from her back pay. Plainly, any monetary recovery would be incidental to that determination. Inasmuch as [t]his is a quintessential example of a dispute governed under CPLR article 78 and the Court of Claims has no subject matter jurisdiction over this type of dispute, we find that the claim was properly dismissed" [internal quotation marks and citations omitted]). For example, in City of New York, the Third Department held that the Court of Claims did not have jurisdiction to hear the City of New York's statutory damages, implied contract, and unjust enrichment claims, seeking state 101 reimbursements for expenses incurred by school districts hosting disabled students residing in the state from the Office of Mental Retardation and Developmental Disabilities (see City of New York, 46 AD3d at 1168-1169). The Court held that, although the claims were "couched only in terms that [sought] recovery of monetary damages, the real challenge [was] to the [Department of Education's] administrative determinations that these claims were not timely filed and that claimants' request for a waiver of the time limitations was also untimely" (id. at 1169). Accordingly, the Court held that "the statutory cause of action, the implied contract cause of action and the unjust enrichment cause of action were all properly dismissed by the Court of Claims for lack of subject matter jurisdiction as they [were] directly dependent upon the Department's determination that the claims [were] not timely and that the waiver request was also untimely" (id. [emphasis added]). As in City of New York, Petitioners' claims for conversion and unjust enrichment are merely incidental to Petitioners' requests to annul Respondents' administrative determinations denying their claims for overburden reimbursement, for mandamus relief compelling Respondents to satisfy their unambiguous statutory duty to calculate and pay Petitioners all reimbursement outstanding, and for a declaration that Section 61 unconstitutionally deprives Petitioners of their vested rights to reimbursement for the overburden expenses incurred on 102 Respondents' behalf prior to January 1, 2006 (R 48-61). Indeed, the natural and necessary consequence of Supreme Court's declaration that Section 61 cannot retroactively impair Petitioners' vested right to overburden reimbursement, and is thus invalid, is payment of the overburden reimbursement sought, alternatively, under Petitioners' conversion and unjust enrichment claims. Moreover, Petitioners' claim seeking to impose a constructive trust over the reimbursements that remain unpaid is, by definition, a claim for equitable relief over which the Court of Claims cannot assert jurisdiction (see Simonds v Simonds, 45 NY2d 233, 241-242 [1978]). Simply stated, Respondents cannot dispute that the Court of Claims lacks jurisdiction over Petitioners' primary CPLR Article 78 and declaratory judgment claims (see Cass v State of New York, 58 NY2d 460, 463 [1983] ["Claims against the State primarily seeking money damages should, of course, be brought in the Court of Claims. It is settled, however, that a declaratory judgment action in the Supreme Court is an appropriate vehicle for challenging the constitutionality of a statute . . . Thus the motion to dismiss the complaint against the State for lack of jurisdiction should have been denied." (citations omitted)]; Matter of Markham v Comstock, 272 AD2d 971, 972 [4th Dept 2000] ["the Court of Claims is not the appropriate forum for litigating a constitutional challenge to the STAR exemption"], appeal dismissed 95 NY2d 886 [2000], cent denied 531 US 1079 103 [2001]; Safety Group No. 194, 2001 WL 939747 ["The Court of Claims does not have jurisdiction over challenges to the constitutionality of statutes, even if such determination is necessary to resolve a claim for money damages against the State. Such challenges should be brought by an action for declaratory judgment, which must be brought in Supreme Court." (citations omitted)]). Thus, contrary to Respondents' argument, the Court of Claims similarly lacks jurisdiction over Petitioners' incidental claims for conversion, unjust enrichment, and constructive trust. Nor can it be seriously disputed that the Supreme Court, in contrast, as a court of general original jurisdiction, has jurisdiction over Petitioners' conversion, unjust enrichment, and constructive trust claims, notwithstanding that they are maintained against Respondents as an agency of the State and its commissioner (see NY Const, art VI, § 7[a]; Kagen v Kagen, 21 NY2d 532, 537 [1968]; Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166 [1967]; see e.g. Gross, 72 NY2d at 236). Indeed, this Court, in Gross, faced the precise issue that Respondents seek to raise in defense of the dismissal of Petitioners' conversion, unjust enrichment, and constructive trust claims—"whether a municipality may challenge a determination by a State administrative agency, and at the same time recover wrongfully withheld money from the State, within the context of an article 78 proceeding in Supreme Court, or whether such a lawsuit must be commenced in 104 whole or in part in the Court of Claims" (Gross, 72 NY2d at 233-234). In soundly rejecting Respondents' argument for exclusive Court of Claims jurisdiction, this Court held: Only if it was found that the NYSDSS acted arbitrarily and capriciously could its determination, and the concomitant administrative penalty, be annulled. This accomplished, the City was then entitled to the withheld reimbursements under the Social Services Law. This is true whether or not the court directed payment, since upon nullification of the underlying administrative action, the State had a statutory duty to reimburse the City. Consequently, in ordering payment to the City, the court merely directed the State to fulfill its statutory duty. Had the City only petitioned for judicial review of the audit procedures employed and annulment of the penalty, without additionally requesting the court to direct payment, the State would still have been obligated to reimburse the City. Thus, the demand for monetary relief was unquestionably incidental to the facts and issues presented ,(id. at 236 [citations omitted1). This Court's decision in Gross controls here. Therefore, the Fourth Department erroneously held that Petitioners could not maintain their conversion, unjust enrichment, and constructive trust claims against Respondents. CONCLUSION For the foregoing reasons, Petitioners respectfully request that this Court affirm the orders of the Appellate Division, Third Department in County of St. Lawrence and County of Cheinung, reverse the orders of the Appellate Division, Fourth Department in County of Chautauqua, County of Jefferson, County of Genesee, County of Oneida, County of Cayuga, and County of Monroe, declare 105 Section 61 unconstitutional and void to the extent the Court deems necessary in the alternative, and award Petitioners such other relief as this Court shall deem just, proper or equitable. Dated: September 15, 2015 WHITEMAN OSTERMAN & HANNA LLP Albany, New York By: Christopher E. Buckey, Esq. Robert S. Rosborough IV, Esq. Attorneys for Petitioners-Plaintiffs-Appellants One Commerce Plaza Albany, New York 12260 (518) 487-7600 NANCY ROSE STORMER, P.C. Nancy Rose Stormer, Esq. Michael Bagge, Esq. Attorneys for Petitioners-Plaintiffs-Appellants 1325 Belle Avenue Utica, New York 13501 (315) 797-0110 BOND SCHOENECK & KING, PLLC Raymond A. Meier, Esq. Co-Counsel for Petitioners-Plaintiffs-Appellants County of Monroe, County of Oneida 501 Main Street Utica, New York 13501 (315) 738-1223 106