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

910
TP 14-00128
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF BRENDA BERNIER, PETITIONER,

                    V                             MEMORANDUM AND ORDER

NIRAV R. SHAH, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF HEALTH, RESPONDENT.


NEIGHBORHOOD LEGAL SERVICES, INC., BUFFALO (DIANA M. STRAUBE OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE
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 an order of the Supreme Court, Erie County [Henry J.
Nowak, Jr., J.], entered January 22, 2014) to review a determination
of respondent. The determination denied petitioner’s request for a
modular wheelchair ramp.

     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 review respondent’s determination made after a fair hearing
denying her a modular wheelchair ramp. Respondent determined that the
ramp did not meet the definition of durable medical equipment (DME)
pursuant to 18 NYCRR 505.5 (a) (1). Contrary to petitioner’s
contention, respondent’s determination is supported by substantial
evidence (see generally Matter of Coffey v D’Elia, 61 NY2d 645, 648;
300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176,
179-180). In addition, “[a]n agency’s interpretation of its
regulations must be upheld unless the determination is irrational and
unreasonable” (Matter of Taher v Novello, 278 AD2d 809, 810, lv denied
96 NY2d 712 [internal quotation marks omitted]; see Matter of Elcor
Health Servs. v Novello, 100 NY2d 273, 280; Matter of Gaines v New
York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548-549),
and we conclude that respondent’s determination that ramps do not fit
within the definition of DME is rational. DME is equipment that is
“primarily and customarily used for medical purposes” and that is
“generally not useful to a person in the absence of an illness or
injury” (18 NYCRR 505.5 [a] [1] [ii], [iii]). We agree with
respondent that ramps may be useful to people, generally, even in the
absence of an illness or injury. We have considered petitioner’s
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                                                         TP 14-00128

remaining contentions and conclude that they are without merit.




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
