Gartz v. Wing

236 A.D.2d 890, 654 N.Y.S.2d 702, 1997 N.Y. App. Div. LEXIS 1916

Opinion

—Determination unanimously annulled on the law without costs and pe tition granted in accordance with the following Memorandum: Petitioner is a 23-year-old woman who suffers from cerebral palsy and spastic quadriplegia and is completely wheelchair-dependent. Petitioner established that, in order for her to go to the eye doctor and the orthopedic clinic, to use the bathroom at her worksite and to visit her family, she requires a customized manual wheelchair. She further established that her powered wheelchair cannot be used for those purposes. Because she does not have a manual wheelchair at her disposal, she has had to borrow a standard manual chair for those activities, as well as for the frequent periods when her powered wheelchair requires repair. Petitioner’s intermediate care facility does not have any wheelchairs available for petitioner’s use, and the standard manual chair that petitioner borrows from a wheelchair company is not fitted to her and she is unable to sit in it in the proper position. Because respondent did not offer any contrary proof, respondent’s determination that a customized manual wheelchair is not medically necessary is not supported by substantial evidence (see, Matter of Dobson v Perales, 175 AD2d 628). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Howe, J.) Present—Green, J. P., Lawton, Doerr, Balio and Fallon, JJ.