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Calvi v. Dumpson

42 N.Y.2d 1032 Court N.Y. Decision date 1977-10-04 English

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p. 1032
In the Matter of Henry Calvi, Appellant, v James R. Dumpson, as Commissioner of the Department of Social Services of the City of New York, et al., Respondents.
Argued September 2, 1977;
decided October 4, 1977
p. 1033
Arthur C. Snitjer, Emilio Gautier and Ira S. Schneider for appellant.
Louis J. Lefkowitz, Attorney-General (William J. Leé, Samuel A. Hirshowitz and Herbert J. Wallenstein of counsel), for James R. Dumpson, respondent.

Memorandum. The order of the Appellate Division should be affirmed.

The hearing officer and the Commissioner of Social Services assigned an incorrect reason for denial of reimbursement for burial expenses. Normally if there were not a reversal there should be a remittal. (Matter of Barry v O’Connell, 303 NY 46 ; cf. Matter of Montauk Improvement v Proccacino, 41 NY2d 913 .) Where, however, as here, petitioner’s claim must fail as a matter of law in view of the affirmed finding of fact that the deceased was not a " 'recipient of public assistance and care’ ” within the meaning of subdivision 4 of section 141 of the Social Services Law, no useful purpose would be served by a remittal.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, without costs, in a memorandum.

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