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

663
TP 12-02248
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF MARK DONVITO, VOLUNTARY
ADMINISTRATOR OF THE ESTATE OF NICHOLAS J.
DONVITO, DECEASED, PETITIONER,

                    V                             MEMORANDUM AND ORDER

NIRAV R. SHAH, M.D., M.P.H., COMMISSIONER, NEW
YORK STATE DEPARTMENT OF HEALTH, ELIZABETH R.
BERLIN, EXECUTIVE DEPUTY COMMISSIONER, NEW YORK
STATE OFFICE OF TEMPORARY AND DISABILITY
ASSISTANCE, AND DAVID SUTKOWY, COMMISSIONER,
ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES,
RESPONDENTS.


MANNION & COPANI, SYRACUSE (ANTHONY F. COPANI OF COUNSEL), FOR
PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF
COUNSEL), FOR RESPONDENTS NIRAV R. SHAH, M.D., M.P.H., COMMISSIONER,
NEW YORK STATE DEPARTMENT OF HEALTH, AND ELIZABETH R. BERLIN,
EXECUTIVE DEPUTY COMMISSIONER, NEW YORK STATE OFFICE OF TEMPORARY AND
DISABILITY ASSISTANCE.


     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, Onondaga County [Deborah H.
Karalunas, J.], entered December 4, 2012) to review a determination of
respondents. The determination denied the application of petitioner’s
decedent for certain Medicaid benefits.

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

     Memorandum: Petitioner, as administrator of his father’s estate,
commenced this CPLR article 78 proceeding challenging the
determination that a seven-month delay on decedent’s eligibility for
Medicaid coverage was properly imposed as a penalty for transferring
resources in order to qualify for Medicaid coverage and that
decedent’s net available monthly income (NAMI) was properly deemed to
include payments he received from his civil service pension. We
confirm the determination.

     Decedent entered an assisted living facility in March 2003 when
he was 83 years old. In October 2008, having suffered a stroke
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                                                         TP 12-02248

several months earlier, decedent was admitted into a nursing home.
Less than two years later, in June 2010, petitioner filed a Medicaid
application on behalf of decedent, having been given power of
attorney. Onondaga County Department of Social Services (DSS) denied
the application, determining that decedent was ineligible for medical
assistance for a seven-month period because he gave $54,162.05 to
petitioner and members of petitioner’s family from June 12, 2007 to
August 14, 2008, which was within the five-year look-back period. The
last of the six transfers — to petitioner in the amount of $6,500 —
was made approximately one month after decedent suffered his stroke.
In January 2011, at the end of the seven-month penalty period,
decedent became eligible for Medicaid. DSS also determined that
decedent’s NAMI included the sum of $1,756.90, which he had been
receiving on a monthly basis from his civil service pension.

     At the fair hearing conducted on the administrative appeal filed
by petitioner, petitioner testified that the $6,500 payment he
received from decedent was not a gift, but instead constituted
reimbursement for expenses he incurred on behalf of decedent.
Although petitioner acknowledged that the other five transfers of
funds to him and his family members were gifts, he contended that
decedent had a history of giving money to him and that, in making the
most recent gifts, decedent was not motivated by a desire to become
eligible for Medicaid. With respect to the determination of
decedent’s NAMI, petitioner testified that, although decedent had been
receiving his monthly payments from his civil service pension, for
unknown reasons decedent stopped receiving the payments in September
2011. Petitioner thus contended that the pension payments should not
be included in decedent’s NAMI. The determination of DSS was affirmed
on the administrative appeal, and we now confirm the determination
following the fair hearing inasmuch as it is supported by the
requisite substantial evidence (see generally Matter of Mallery v
Shah, 93 AD3d 936, 937).

     “In determining the medical assistance eligibility of an
institutionalized individual, any transfer of an asset by the
individual . . . for less than fair market value made within or after
the look-back period shall render the individual ineligible for
nursing facility services” for a certain penalty period (Social
Services Law § 366 [5] [d] [3]). The look-back period is the “sixty-
month period[] immediately preceding the date that an [applicant] is
both institutionalized and has applied for medical assistance” (§ 366
[5] [d] [1] [vi]). Where an applicant has transferred assets for less
than fair market value, the burden of proof is on the applicant to
“rebut the presumption that the transfer of funds was motivated, in
part if not in whole, by . . . anticipation of future need to qualify
for medical assistance” (Mallery, 93 AD3d at 937 [internal quotation
marks omitted]; see generally § 366; 18 NYCRR 360-4.4).

     Here, petitioner failed to meet his burden of proof at the fair
hearing with respect to the transfer of resources during the look-back
period. Petitioner offered no receipts or other documentary evidence,
such as credit card bills or cancelled checks, to support his
assertion that he purchased on decedent’s behalf, inter alia,
                                 -3-                           663
                                                         TP 12-02248

furniture and clothing in the amount of $6,500. Indeed, petitioner
did not specify where he purchased the items or the cost of each item.
We also note that the $6,500 transfer was made to petitioner shortly
after decedent suffered a stroke, at which time decedent’s need for
nursing home services could easily have been anticipated (see Matter
of Javeline v Whalen, 291 AD2d 497, 497). With respect to the other
transfers, which petitioner concedes were gifts, petitioner did not
establish that decedent was not motivated, at least in part, by a
desire to qualify for Medicaid. Contrary to petitioner’s contention,
decedent did not have a consistent history of giving money to
relatives; before the transfers in question, decedent’s most recent
gift was seven years earlier.

     Finally, petitioner failed to establish that decedent’s civil
service pension was improperly included in his NAMI. Decedent’s bank
records showed that the pension payments were made directly into his
account on a monthly basis until September 2011, and petitioner
offered no explanation for why decedent was no longer receiving those
pension benefits, which presumably were payable for life. It is
undisputed that “available income” includes pension benefits (see 18
NYCRR 360-4.3 [b] [3]), and DSS did not have the burden at the fair
hearing of proving that decedent was still receiving those payments.




Entered:   July 19, 2013                        Frances E. Cafarell
                                                Clerk of the Court
