Clark v. Lavine , 55 A.D.2d 932 ( 1977 )

In a proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Department of Social Services, dated October 24, 1975, and made after a statutory fair hearing, which affirmed a determination of the Dutchess County Department of Social Services denying petitioner’s application for medical assistance, the State commissioner appeals from a judgment of the Supreme Court, Dutchess County, dated May 3, 1976, which, inter alia, annulled the determination. Judgment affirmed, with costs to petitioner. Petitioner, an 88-year-old widow, applied for medical assistance. The application was denied because she had transferred real and personal property to her son within one year prior to the application. Appellant determined, after a fair hearing, that petitioner failed to rebut the presumption, contained in section 366 (subd 1, par [e]) of the Social Services Law, that the transfers were made for the purpose of qualifying for assistance, and that the real property failed to qualify for a homestead exemption pursuant to section 366 (subd 2, par [a], cl [1]) of the Social Services Law, because petitioner would never return home again. Petitioner challenged these rulings in this article 78 proceeding and was upheld by Special Term, which found that the evidence adduced at the hearing adequately proved that the transfers were made for valuable consideration and that the real property transferred had qualified for the homestead exemption. A review of the record supports the conclusions of Special Term. Petitioner submitted evidence which satisfies the statute; an offer by petitioner of additional evidence was waived by appellant. Whether the property was transferred before or after the application for medical assistance was submitted makes no difference (cf. Matter of Mondello v D’Elia, 39 NY2d 978). Hopkins, Acting P. J., Martuscello, Cohalan and Damiani, JJ., concur.