Calvi v. Dumpson

369 N.E.2d 757, 42 N.Y.2d 1032, 399 N.Y.S.2d 201, 1977 N.Y. LEXIS 2372

Opinion

Memorandum. The order of the Appellate Division should be affirmed.

The hearing officer and the Commissioner of Social Services assigned an incorrect reason for denial of reimbursement for burial expenses. Normally if there were not a reversal there should be a remittal. (Matter of Barry v O’Connell, 303 NY 46; cf. Matter of Montauk Improvement v Proccacino, 41 NY2d 913.) Where, however, as here, petitioner’s claim must fail as a matter of law in view of the affirmed finding of fact that the deceased was not a " 'recipient of public assistance and care’ ” within the meaning of subdivision 4 of section 141 of the Social Services Law, no useful purpose would be served by a remittal.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, without costs, in a memorandum.