In December 1991, the plaintiffs submitted to the New York State Department of Health (hereinafter the DOH) an “Establishment/Construction Certificate of Need” application for the construction of a nursing home in Freeport. The plaintiffs’ application received conditional approval in 1993 from both the DOH and the Public Health Council. The approval of both is required. However, the project was reconfigured and, in April 1997, was assigned a new project number. On December 7, 1999, the Public Health Council and the Commissioner of Health issued a resolution proposing to approve the project providing nine specified contingencies were met and conditioned upon the commencement of construction on or before June 1, 2001. Shortly thereafter, all but one of the contingencies were satisfied by the plaintiffs. The remaining contingency required the plaintiffs to obtain a mortgage commitment from an approved lender.
However, on August 3, 2000, prior to the fulfillment of all the contingencies, the Director of the DOH Office of Hospital Systems Management announced a moratorium affecting all approved nursing home projects which had yet to receive final approval and begin construction. This moratorium was based on a 1997 State Hospital Review and Planning Council’s Work-group report on Subacute Care. The Commissioner of the DOH determined that new standards should be implemented for determining need for nursing homes. By letter dated August 24, 2000, the DOH advised the plaintiffs that their project was subject to the moratorium, stating, “[w]hile the temporary moratorium is in place, the Department will undertake a *188review of the need for additional nursing home beds in the state, and will consider possible changes to the need formula.”
In November 2000, the plaintiffs commenced the instant action, inter alia, for a declaration that the moratorium did not apply to them and subsequently moved, among other things, for injunctive relief enjoining the DOH from applying the moratorium to their application. The Supreme Court granted the plaintiffs’ motion, finding that the moratorium was inapplicable to the plaintiffs’ project.
While I agree with the majority that the moratorium applies to the plaintiffs and that the DOH properly exercised its discretion to delay a decision on the pending application to further determine public need (see Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88, 93; Matter of Jay Alexander Manor v Novello, 285 AD2d 951, lv denied 97 NY2d 610), I would remit the matter to the DOH with a direction that it complete its study and make its determination as to necessity within a reasonable time. In the field of moratoria, it is well settled that the life of a moratorium may not exceed a reasonable period of time (cf. Cellular Tel. Co. v Village of Tarrytown, 209 AD2d 57, 66; Mitchell v Kemp, 176 AD2d 859, 860). Given the length of time involved in the application process and the plaintiffs’ substantial investment with respect thereto, and the fact that the moratorium has been imposed since August 2000, fairness requires that a determination as to necessity be rendered by the DOH promptly.
Accordingly, I would reverse the order insofar as appealed from and remit the matter to the DOH for it to complete its study and render its determination within 60 days of this opinion and order.
Ritter, J.P., and Goldstein, J., concur with Townes, J.; McGinity and H. Miller, JJ., concur in part and dissent in part and vote to reverse the order and remit the matter to the New York State Department of Health for a determination on the issue of necessity in a separate opinion by McGinity, J.
Ordered that the order is reversed insofar as appealed from, on the law, with costs to the defendants, the motion for a preliminary injunction is denied in its entirety, that branch of the defendants’ cross motion which was to dismiss the third cause of action asserted in the complaint is granted, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.