SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

712 

TP 14-02106 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.

 

IN THE MATTER OF DAVID SCOTT, BY SHERI DANA AND 

MICHAEL DANA, PETITIONER, 

V MEMORANDUM AND ORDER

HOWARD A. ZUCKER, COMMISSIONER, NEW YORK STATE 

DEPARTMENT OF HEALTH, RESPONDENT. 

 

HURWITZ & FINE, P.C., BUFFALO (EDWARD C. ROBINSON OF COUNSEL), FOR

PETITIONER. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF

COUNSEL), FOR RESPONDENT. 

 

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial

Department by order of the Supreme Court, Genesee County [Robert C.

Noonan, A.J.], entered November 24, 2014) to annul a determination of

respondent that petitioner made certain uncompensated transfers prior

to his admission to a skilled nursing facility. 

It is hereby ORDERED that the determination is unanimously

confirmed without costs and the petition is dismissed. 

Memorandum: Petitioner commenced this CPLR article 78 proceeding

seeking to annul the determination that he made certain uncompensated

transfers prior to his admission to a skilled nursing facility. “In

reviewing a Medicaid eligibility determination made after a fair

hearing, ‘[a] court must review the record, as a whole, to determine

if [respondent’s] decisions are supported by substantial evidence and

are not affected by an error of law’ ” (Matter of Barbato v New York

State Dept. of Health, 65 AD3d 821, 822-823, lv denied 13 NY3d 712). 

At the fair hearing, petitioner asserted that certain transfers were

made pursuant to a personal service agreement (PSA) between him and

his daughter and son-in-law. The PSA provided that petitioner would

pay his daughter and son-in-law $5,000 per month “for services and

care.” The PSA did not set forth any specific services that would be

provided to petitioner, but it required someone to be present with him

at the residence. If the daughter or son-in-law were not present,

petitioner agreed to pay for additional care as needed. Over the

course of the next four years, payments pursuant to the PSA were not

made on a regular basis. Rather, the daughter and son-in-law withdrew

money from petitioner’s checking account to pay their debts as they

saw fit. For example, in one year, no payments were made and, in the
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TP 14-02106 

month petitioner entered a skilled nursing facility, a transfer of

$60,000 was made. 

At the fair hearing, petitioner gave no explanation of the

services that were provided other than transportation on occasion, did

not submit any documentation regarding the services, and offered no

proof regarding the fair market value of any services. We therefore

conclude that substantial evidence supports the determination that the

transfer of assets were uncompensated transfers (cf. Matter of Kerner

v Monroe County Dept. of Human Servs., 75 AD3d 1085, 1087). We reject

petitioner’s contention that the matter should be remitted to Supreme

Court, as the matter was in Kerner, so that petitioner can provide the

necessary proof. In Kerner, the PSA specified the services that would

be provided to the petitioner, and the record in that case established

that the petitioner offered some proof and testimony regarding the

services that were rendered to him (see id. at 1086-1087). Here,

petitioner was advised by the local agency that he needed to submit

specific proof with respect to the services, but petitioner provided

none, and we will not speculate whether petitioner could provide such

proof upon a remittal. We have considered petitioner’s remaining

contention and conclude that it is without merit.

Entered: June 12, 2015 Frances E. Cafarell

Clerk of the Court