McCoun v. D'Elia

51 A.D.2d 579, 378 N.Y.S.2d 986, 1976 N.Y. App. Div. LEXIS 10868

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1976
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Social Services, dated February 28, 1975 and made after a statutory fair hearing, which affirmed a determination of the respondent Commissioner of the Department of Social Services of Nassau County, which denied petitioner’s renewed application for medical assistance. Determination confirmed and proceeding dismissed on the merits, without costs. There was no evidence in this proceeding to support the finding of an agreement to convey the subject premises in return for past services rendered to petitioner by her son (cf. Sweeney v D’Elia, 49 AD2d 593), whereas the evidence did support the determination that had the conveyance been a cash transfer, petitioner would have realized funds to be made available for her medical care. Inasmuch as the county commissioner also determined that more than $17,000 was paid by the transferee for petitioner’s care after the voluntary transfer to him, and that, in the same circumstances, the fair market value of the home will shortly have been paid by the son, the determination was neither arbitrary nor capricious (cf. Matter of Paige v D’Elia 49 AD2d 882; Mondello v D’Elia, 49 AD2d 582). Martuscello and Latham, JJ., concur; Rabin, Acting P. J., Margett and Shapiro, JJ., concur on constraint of Matter of Paige v D’Elia (49 AD2d 882) and Mondello v D’Elia (49 AD2d 582).