Spencer v. Perales — 135 A.D.2d 1080

Majority

p. 1080

In the Matter of James W. Spencer, as Attorney-in-Fact for Hazel M. Spencer, Petitioner, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.

— Determination unanimously confirmed and petition dismissed without costs. Memorandum: Shortly after Hazel Spencer became a resident of a nursing home, petitioner, who is Spencer’s nephew and attorney-in-fact, offered to assign the proceeds of a pending liquidation of her property to respondent Hackett, the Cattaraugus County Commissioner of Social Services. Hackett refused the assignment and subsequently rejected petitioner’s application for medical assistance (Medicaid) because Spencer had excess resources. After a fair hearing, respondent Perales upheld Hackett’s determination.

We conclude that respondent Hackett had the discretionary authority to accept or reject an assignment of the proceeds of a pending liquidation of property owned by an applicant (18 NYCRR 360.6 [c] [2]). The determination by the State Commissioner of Social Services that Hackett properly exercised his

p. 1081

discretion to refuse the assignment and correctly rejected the application for assistance is supported by substantial evidence that Spencer’s property is saleable at a price in excess of her resource level. Accordingly, the determination should be confirmed. (Article 78 proceeding transferred by order of Supreme Court, Erie County, Wolf, J.) Present — Dillon, P. J., Doerr, Green, Balio and Davis, JJ.