McManus v. D'Elia

• Decision Date: 04 December 1978
• Citation: 66 A.D.2d 783,410 N.Y.S.2d 655
• Parties: In the Matter of Valeska McMANUS, Petitioner, v. Joseph A. D'ELIA, as Commissioner of the Nassau County Department of Social Services et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 655

410 N.Y.S.2d 655

66 A.D.2d 783

In the Matter of Valeska McMANUS, Petitioner, v. Joseph A. D'ELIA, as Commissioner of the Nassau County

Department of Social Services et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Dec. 4, 1978.

Joseph Canzoneri, Franklin Square, for petitioner.

Louis J. Lefkowitz, Atty. Gen., New York City (Joseph F. Wagner and Samuel A. Hirshowitz, New York City, of counsel), for respondent Toia.

Edward G. McCabe, County Atty., Mineola (Michael P. Fogarty, New York City, of counsel, Kathryn Driscoll, Mineola, on brief), for respondent D'Elia.

Before HOPKINS, J. P., and MARTUSCELLO, GULOTTA and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent State Commissioner, dated July 6, 1977, and made after a statutory fair hearing, which affirmed a determination of the local agency denying petitioner's application for medical assistance.

Determination confirmed, without costs or disbursements, and petition dismissed on the merits.

The petitioner had been a recipient of Supplemental Security Income (SSI) which fact was known by the local agency since November, 1975. On June 11, 1976 the petitioner's application for medical assistance was approved retroactive to May 1, 1976. The petitioner was injured on July 7, 1976 and was confined to a hospital until July 31, 1976, at which time she was transferred to a nursing home. Previously, on January 16, 1976, the petitioner had appointed her daughters, Florence Murphy and Grace Larsen, as her attorneys in fact, by a written power of attorney.

On July 14, 1976 the two attorneys in fact, ostensibly acting on behalf of the petitioner, conveyed to themselves, individually, the title to the home owned and inhabited by the petitioner prior to her injury. Thereafter, the two daughters contracted to sell the property to a third party for the sum of $30,000; on December 17, 1976 title was transferred pursuant to the contract, by a deed executed by the attorneys in fact on behalf of the petitioner. Apparently, the execution of the deed by the daughters, as attorneys in fact, was required by a title company acting for the contract purchaser, notwithstanding the existence of the prior deed conveying title to the two daughters individually.

Before the petitioner's injury, her application for medical assistance had been approved effective May 1, 1976. When the petitioner entered the nursing home she was required to reapply for medical assistance; on September 15, 1976 the new application was denied for failure to submit sufficient information to determine eligibility. No fair hearing with respect to this decision was requested, because the attorneys in fact believed that the application had been reconsidered and granted inasmuch as bills from the nursing home were not received for a time. When the nursing home resumed billing the petitioner in March, 1977, a second application was made. This application was denied, and after a fair hearing requested by the petitioner was held, the denial was affirmed on the ground of the transfer of the petitioner's home, rendering her ineligible for the receipt of medical assistance.

In this proceeding the petitioner contends that she is not ineligible because she transferred the property. She argues that her home was a homestead exempt from application toward the payment of the cost of medical care (Social Services Law, § 366, subd. 2) and that the transfer of the homestead cannot be taken into account to render her...