Solarski on Behalf of Solarski v. Glass

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MERCURE; YESAWICH; MERCURE
• Citation: Solarski on Behalf of Solarski v. Glass, 638 N.Y.S.2d 812, 225 A.D.2d 868 (N.Y. App. Div. 1996)
• Decision Date: 07 March 1996
• Parties: In the Matter of Harriet SOLARSKI, on Behalf of Stanley D. SOLARSKI Sr., Petitioner, v. Mary C. GLASS, as Commissioner of the New York State Department of Social Services, et al., Respondents.

Page 812

638 N.Y.S.2d 812

225 A.D.2d 868

In the Matter of Harriet SOLARSKI, on Behalf of Stanley D SOLARSKI Sr., Petitioner, v. Mary C. GLASS, as Commissioner of the New York State Department of Social Services, et al., Respondents.

Supreme Court, Appellate Division Third Department.

March 7, 1996.

MacKrell, Rowlands, Premo & Pierro (Daniel A. Ehring, of counsel), Albany, for petitioner.

Dennis C. Vacco, Attorney General (Patrick Barnett-Mulligan, of counsel), Albany, for Mary C. Glass, respondent.

Francis E. Dorsey, Department of Social Services, Saratoga, for Robert S. Christopher, respondent.

Before MERCURE, J.P., and CREW, YESAWICH and PETERS, JJ.

YESAWICH, Justice.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent State Commissioner of Social Services which sustained a reduction in petitioner's Medical Assistance coverage.

Upon reconsideration of its initial denial of petitioner's application (on behalf of her husband) for Medical Assistance benefits, the Saratoga County Department of Social Services (hereinafter the Department) again denied the application, on the ground that petitioner had failed to provide all of the requested documentation. In addition, it found that if she were to establish her husband's eligibility at a future date, the assistance available would be limited for a period of 25 months, because petitioner had transferred assets for less than their fair market value during the "look-back" period (see, Social Services Law § 366[5][d][3], [4] ). Petitioner requested and was afforded a fair hearing, after which the Administrative Law Judge (hereinafter ALJ) upheld the Department's determination as to the asset transfer. This challenge to that determination ensued.

The ALJ's conclusion that petitioner divested herself of approximately $100,000 just prior to applying for benefits, by granting her children an ownership interest in several bank accounts, was amply justified, given the statutory presumption that the creation of a joint bank account creates an equal ownership interest in each of the named owners (see, Banking Law § 675; McGill v. Booth, 94 A.D.2d 928, 929, 463 N.Y.S.2d 333). Petitioner presented no factual evidence to rebut this presumption; her conclusory averment that the two children's names were added to each account "for convenience purposes only", and her attorney's assertion that petitioner kept the passbooks and maintained control over the accounts, are entirely unsubstantiated (compare, Matter of Phelps v. Kramer, 102 A.D.2d 908, 909, 477 N.Y.S.2d 743). Accordingly, the ALJ did not err in finding that transfers had been made of two thirds of the funds in each account when the changes in ownership were effected (see, Matter of Coughlin v. Commissioner of Social Servs., 75 A.D.2d 895, 896, 428 N.Y.S.2d 291; Matter of Coddington, 56 A.D.2d 697, 698, 391 N.Y.S.2d 760).

Nor did petitioner present any convincing proof that the transfers were made solely for a reason other than to qualify for benefits (see, Social Services Law § 366[5][d][3][iii][B]; see also, 42 USC § 1396p[c][2][C][ii] ). Again, although petitioner avers that the transfers were made for the purpose of avoiding probate, no evidentiary support for that bald assertion has been proffered. In view of the timing of the transfers, which were made just a few months before she applied for benefits, we cannot say that the ALJ erred in...