Reton v. Kirby

88 A.D.2d 979, 451 N.Y.S.2d 795, 1982 N.Y. App. Div. LEXIS 17358

Opinion

— Appeal from a judgment of the Supreme Court, Suffolk County (Corso, J.), entered June 29, 1981, which, inter alia, dismissed the petition pursuant to CPLR article 78 to review a determination of the respondent State Commissioner of Social Services which held that two retroactive checks must be considered income for the months they were intended to cover and denied petitioner’s request for the appointment of Ira S. Schneider as guardian ad litem. Judgment reversed, on the law, without costs or disbursements, and petition granted to the extent that the determination is annulled, Ira S. Schneider is appointed guardian ad litem for petitioner, and the matter is remitted to respondents for further proceedings consistent herewith. As a preliminary procedural matter, we note that in view of the uncontested evidence of petitioner’s senility and the documentation provided by petitioner’s attorney, it was error for Special Term to deny appointment of Ira S. Schneider as guardian ad litem (see CPLR 1202). Petitioner properly retained the balance of the lump-sum checks received in June, 1978 and November, 1979. Benefits should be reinstated accordingly (see Matter of Be Rosa v Kirby, 87 AD2d 342). Gulotta, J. P., O’Connor, Thompson and Brown, JJ., concur.