        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

598
TP 10-01858
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


IN THE MATTER OF ANNE N. ZICKL, PETITIONER,

                    V                             MEMORANDUM AND ORDER

RICHARD F. DAINES, M.D., COMMISSIONER, NEW
YORK STATE DEPARTMENT OF HEALTH, RESPONDENT.


LAW OFFICES OF RANDOLPH P. ZICKL, BATAVIA (RANDOLPH P. ZICKL OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO 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 [Michael F.
Griffith, A.J.], entered September 8, 2010) to review a determination
of respondent. The determination applied a net available monthly
income of $292.28 toward the cost of petitioner’s institutional care.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner, a patient in a skilled nursing facility,
commenced this CPLR article 78 proceeding seeking to annul the
determination that she is obligated to apply her net available monthly
income in the amount of $292.28 to her institutional care, rather than
to the needs of her spouse who resides in the community. As a
preliminary matter, we note that the matter was improperly transferred
to this Court inasmuch as the petition alleges only that the
determination is arbitrary and capricious and does not raise an issue
of substantial evidence (see CPLR 7804 [g]). Nevertheless, we review
the merits of petitioner’s contention in the interest of judicial
economy (see Matter of Burgin v Keane, 19 AD3d 1127).

     The underlying facts are not in dispute. In the fair hearing
conducted by respondent, petitioner relied upon Matter of Balzarini v
Suffolk County Dept. of Social Servs. (55 AD3d 187, revd 16 NY3d 135),
before that case was reversed by the Court of Appeals. In relying on
the decision of the Second Department, petitioner contended that the
recurring monthly expenses of her spouse exceeding the “Medicaid
minimum monthly maintenance needs allowance” may be considered to be
exceptional circumstances that result in significant financial
distress within the meaning of 18 NYCRR 360-4.10 (a) (10). Those
                                 -2-                           598
                                                         TP 10-01858

recurring monthly expenses of petitioner’s spouse included mortgage
payments, real property taxes, credit card payments and the cost of
utilities. In reversing the decision in Balzarini, however, the Court
of Appeals held “that ‘exceptional circumstances’ causing ‘significant
financial distress’ within the meaning of the joint federal-state
Medicaid program do not encompass everyday living expenses in excess
of the ‘minimum monthly maintenance needs allowance’ . . ., an amount
deemed sufficient by Congress for an individual to live in the
community after his or her spouse residing in a nursing home becomes
eligible for Medicaid” (id. at 138-139; see Matter of Schachner v
Perales, 85 NY2d 316, 325). Thus, we confirm the determination.




Entered:   April 29, 2011                      Patricia L. Morgan
                                               Clerk of the Court
