Garramone v. Bernstein

• Decision Date: 03 November 1980
• Citation: 78 A.D.2d 854,433 N.Y.S.2d 468
• Parties: In the Matter of Esther GARRAMONE, Petitioner-Respondent, v. Blanche BERNSTEIN, as Commissioner of the New York City Department of Social Services, Respondent; Barbara Blum, as Commissioner of the New York State Department of Social Services, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 468

433 N.Y.S.2d 468

78 A.D.2d 854

In the Matter of Esther GARRAMONE, Petitioner-Respondent, v. Blanche BERNSTEIN, as Commissioner of the New York City Department of Social Services, Respondent Barbara Blum, as Commissioner of the New York State Department of Social Services, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 3, 1980.

Robert Abrams, Atty. Gen., New York City (Donna N. Miller and Maryellen Weinberg, New York City, of counsel), for appellant.

Marshall Green, Brooklyn (Martin L. Price, Brooklyn, of counsel; Don Candee, law student and Anshel David, Brooklyn, on brief), for petitioner-respondent.

Before DAMIANI, J. P., and TITONE, MANGANO and GIBBONS, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the State Commissioner dated October 3, 1978 and made after a statutory fair hearing, which affirmed the determination of the local agency to discontinue petitioner's medical assistance authorization, the appeal is from a judgment of the Supreme Court, Kings County entered November 5, 1979, which granted the petition and, inter alia, ordered that petitioner be given retroactive payments for benefits improperly denied.

Judgment modified, on the law, by adding thereto a provision that the amount of petitioner's net annual income exempt from consideration in determining financial eligibility is $2,952. As so modified, judgment affirmed, without costs or disbursements.

The agency, in calculating petitioner's net annual income for purposes of determining her financial eligibility for medical assistance, incorrectly held that there was exempt from consideration the net annual income of $2,900 as provided by statute at the time in question (Social Services Law, § 366, subd. 2, par. (a), cl. (8), as amd. L.1977, ch. 431, § 4). Rather, it should have used the annual accumulation of the $94 basic monthly need allowance (see Social Services Law, § 131-a, subd. 3; 18 NYCRR 352.3) and the $152 local maximum monthly shelter allowance with heat for New York City (see 18 NYCRR 352.3), which would have resulted in an annual exemption of $2,952 (see Matter of Vailes v. D'Elia, App.Div., 432 N.Y.S.2d 204 (2d Dept., 1980); Aitchison v. Berger, D.C., 404 F.Supp. 1137, affd. 2 Cir., 538 F.2d 307, cert. den. 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172). The difference of $52 per year, or $4.33 per month, must be subtracted from petitioner's excess income as...