In the Matter of Katherine Luther Corporation, Respondent, v. Brian J. Wing, as Acting Commissioner of Social Services of State of New York, et al., Appellants

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