(concurring). Although, in my view, the instant case is distinguishable at least in part from Matter of Cortlandt Nursing Home v Axelrod (99 AD2d 105, appeal dismissed 63 NY2d 772, lv granted 64 NY2d 602), I am constrained to concur on the basis of this court’s decision in Matter of Cattaraugus County Nursing Home v Axelrod (107 AD2d 950).