Bozeat v. Berger

• Decision Date: 07 July 1976
• Citation: 385 N.Y.S.2d 1007,87 Misc.2d 366
• Parties: Application of Julia BOZEAT, Petitioner, For a Judgment of under Article 78 of the Civil Practice Law and Rules, v. Stephen BERGER, as Commissioner of the New York State Department of Social Services and John L. Lascaris, as Commissioner of the Onondaga County Department of Social Services, Respondents.
• Court: New York Supreme Court

Page 1007

385 N.Y.S.2d 1007

87 Misc.2d 366

Application of Julia BOZEAT, Petitioner, For a Judgment of under Article 78 of the Civil Practice Law and Rules, v. Stephen BERGER, as Commissioner of the New York State Department of Social Services and John L Lascaris, as Commissioner of the Onondaga County Department of Social Services, Respondents.

Supreme Court, Onondaga County.

July 7, 1976.

Richard N. Cosentino, Weedsport, for petitioner; Dale R. Yates, Weedsport, of counsel.

Louis J. Lefkowitz, Atty. Gen., for respondent, Stephen Berger, Commissioner of N.Y. State Dept. of Social Services; Sidney L. Grossman, Asst. Atty. Gen. in Charge, Syracuse, of counsel.

John B. La Paro, Chief Welfare Atty., Syracuse, for respondent, John L. Lascaris, as Commissioner of the Onondaga County Dept. of Social Services; Clifford W. LaBarge, Syracuse, of counsel.

MEMORANDUM DECISION

EDWARD F. McLAUGHLIN, Justice:

Petitioner moved under Article 78 CPLR to reverse a determination by the respondents which denied petitioner's application for medical assistance authorization.

Briefly, the petitioner, who claims to be a lifelong resident of the County of Onondaga, alleges that during 1972, she was receiving Social Security disability benefits and was provided with medical assistance (Medicaid) through Onondaga County Department of Social Services in the year 1971. On October 9, 1972, she commenced an eight-week course in Dog Grooming which was to be conducted in New York City, approval for such course having been given by the Division of Vocational Rehabilitation of the State of New York. She claims to have been assured by that agency that her Medicaid coverage would continue.

Petitioner had been approved for medical assistance in the year 1971. At some time prior to the commencement of her course in New York City, petitioner applied for medical assistance for the year 1972. In October, she informed respondent that she was in school in New York City. On October 27, 1972, the Onondaga County Department of Social Services rendered a decision, a notice of which was mailed to petitioner's residence in Jordan, New York, rejecting petitioner's application for medical assistance for 1972 on the basis that she was not a resident of Onondaga County. Said notice further advised petitioner that if she was dissatisfied with the decision, she was entitled to appeal and to have a fair hearing by the New York State Department of Social Services. She was further advised that if she wished to make such an appeal and have a fair hearing, she was to notify the New York State Department of Social Services, 333 East Washington Street, Syracuse, New York, in writing, within sixty (60) days of the date of the letter notice.

Thereafter, while attending the vocational rehabilitation program in New York City, petitioner was hospitalized at Bellevue Hospital in New York City from November 23, 1972 until November 30, 1972. On admission to the hospital, she advised that she was a resident of Onondaga County and entitled to Medicaid benefits and exhibited her 1971 Medicaid card. She was advised by the Hospital that the cost involved would be taken care of through the Financial Department.

On returning to her home in Jordan, New York, on December 1, 1972, she discovered the letter from Onondaga County Department of Social Services dated October 27, 1972, rejecting her application on the basis of non-residence. She took no action at that time on the assumption that Bellevue Hospital would handle the matter with Onondaga County Social Services Department. The next communication which petitioner received was in November 1975 when a law firm in Great Neck, New York, sent petitioner a letter seeking to collect the Bellevue Hospital bill which was in the sum of $843.78.

On December 15, 1975, petitioner requested a fair hearing to revoke the determination of respondent, Onondaga County Social Services Department, denying her application for medical assistance. Said fair hearing was held at Syracuse, New York, on January 6, 1976, at which time the petitioner, with her attorney and representatives of respondent, Onondaga County Department of Social Services appeared. On January 23, 1976, a decision after a fair hearing was rendered which denied petitioner's application for medical assistance on the sole ground that the sixty (60) day requirement of Section 135--a of the Social Services Law was not complied with inasmuch as her application for a fair hearing was not made until December 15, 1975, a period of over three years, and, therefore, the Commissioner was without jurisdiction to act on her case.

Petitioner contends that the decision by respondents was arbitrary, capricious and an abuse of discretion and that benefits were unlawfully denied to petitioner.

Petitioner further contends that respondent, County of Onondaga Department of Social Services, did not comply with subds. (c) and (d) of Regulation 18 N.Y.C.R.R. 358.3 in that the said notice did not advise petitioner that she may be represented by legal counsel or by a relative, friend or other spokesman, or she may represent herself and of the availability of the community legal services available to assist her in the fair hearing, and since this regulation governing the right to counsel was not complied with, the sixty (60) day time limit to request a fair hearing, as required by Section 135--a of the Social Services Law did not commence to run.

The issue of substantial evidence specified in subd. 4 of Section 7803 CPLR is not an issue here, and, therefore, this Court will proceed to dispose of the matter under the provision of CPLR 7804 subdivision (g) as to whether respondents were arbitrary or unreasonable in the determination made under Section 135--a of the Social Services Law.

In her petition, the petitioner states that upon returning to Jordan, New York, on December 1, 1972, after completion of her vocational rehabilitation course in New York City, she discovered the...