                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 8, 2016                   522888
________________________________

In the Matter of JESSIE
   KRAJEWSKI,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
HOWARD A. ZUCKER, as
   Commissioner of Health,
   et al.,
                    Respondents.
________________________________


Calendar Date:   October 21, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

                             __________


     John W. Sutton, Galway, for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Kate H.
Nepvue of counsel), for Howard A. Zucker, respondent.

      Christopher H. Gardner, County Attorney, Schenectady
(Michael R. Godlewski of counsel), for Schenectady County
Department of Social Services, respondent.

                             __________


Lynch, J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Schenectady
County) to review a determination of the Department of Health
finding petitioner ineligible for Medicaid benefits for a certain
period of time.

     Petitioner moved into a skilled nursing facility in June
2014. In July 2014, petitioner's husband, as her attorney-in-
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fact, applied for Medicaid benefits on her behalf. Respondent
Schenectady County Department of Social Services approved
Medicaid coverage for certain services effective June 1, 2014,
but found petitioner to be ineligible for nursing facility
services for a penalty period of five months based on certain
asset transfers made during the applicable "look-back" period
(see Social Services Law § 366 [5] [e] [3]). The Department of
Health affirmed the determination after a fair hearing.
Petitioner commenced this proceeding pursuant to CPLR article 78
to annul the determination asserting that it was not supported by
substantial evidence. Supreme Court transferred the proceeding
to this Court.

      We confirm. "In reviewing a Medicaid eligibility
determination rendered after a hearing, this Court must review
the record, as a whole, to determine if the agency's decisions
are supported by substantial evidence and are not affected by an
error of law" (Matter of Whittier Health Servs., Inc. v Pospesel,
133 AD3d 1176, 1177 [2015] [internal quotation marks and
citations omitted]; see Matter of Conners v Berlin, 105 AD3d
1208, 1210 [2013]). For purposes of determining Medicaid
eligibility, "any transfer of an asset by the individual or the
individual's spouse 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 period of time
based on the amount transferred (Social Services Law § 366 [5]
[e] [3]; see Matter of Whittier Health Servs., Inc. v Pospesel,
133 AD3d at 1177; Matter of Mallery v Shah, 93 AD3d 936, 937
[2012]). Such a transfer will not result in a penalty period
where the applicant has made a satisfactory showing that the
individual intended to dispose of the assets at fair market value
or the assets were transferred exclusively for a purpose other
than to qualify for medical assistance (see Social Services Law
§ 366 [5] [e] [4] [iii]; Matter of Mallery v Shah, 93 AD3d at
937). The burden is on the applicant to demonstrate his or her
eligibility for Medicaid by rebutting the "presumption that the
transfer of funds was motivated, in part if not in whole, by
 . . . anticipation of a future need to qualify for medical
assistance" (Matter of Mallery v Shah, 93 AD3d at 937 [internal
quotation marks and citations omitted]; see Matter of Conners v
Berlin, 105 AD3d at 1210).
                              -3-                522888

      The record shows that petitioner's spouse, who passed away
in March 2015, transferred certain assets during the 60-month
look-back period. Petitioner's son, Gary Krajewski, concedes
that one such transfer – $15,000 given to him after a sale of
real property – was for less than fair market value. At the
hearing, Krajewski testified that his father habitually withdrew
cash from the joint checking account to pay his own expenses.
Further, he explained that his father sent money to petitioner's
daughter, Cynthia DiFranco, who cared for petitioner at her home
from June 2012 until she moved to the nursing facility.
According to Krajewski, DiFranco's share of the real property
sale was also given in exchange for the care that she gave to
petitioner and to reimburse her for expenses that she had
incurred on petitioner's behalf.

      Petitioner contends that she successfully rebutted any
presumption arising under Social Services Law § 366 (5) (e). We
disagree. Substantial evidence is "less than a preponderance of
the evidence" and "demands only that a given inference is
reasonable and plausible, not necessarily the most probable"
(Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499
[2011] [internal quotation marks and citations omitted]; see
Matter of Jackson v Barber, 133 AD3d 958, 959 [2015]). While we
do not wish to diminish DiFranco's contributions to her family,
petitioner's proof with regard to certain claimed expenses
consisted only of handwritten summaries of petitioner's average
share of DiFranco's monthly grocery bill, her one-third share of
the household's utility bills, and the approximate cost of items
and services that DiFranco obtained for petitioner. Krajewski
was not aware of whether there was any specific agreement with
regard to the decision to have DiFranco care for petitioner, and
he testified that he was not involved in the transactions between
DiFranco and their father. DiFranco did not testify.

      We cannot say that respondents erred in rejecting this
proof as inadequate and note that the Department of Social
Services duly credited petitioner for expenses in which receipts
were provided. It is not disputed that when she moved in with
her daughter, petitioner could no longer safely live at home, and
the need for future nursing home care could have been
anticipated. In our view, even though there was some evidence
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that could support a different result, substantial evidence
supports the determination of the Department of Health that the
subject transfers were made for less than fair market value and
that petitioner failed to rebut the presumption that the
transfers, at least in part, were made for the purpose of
qualifying for benefits (see Matter of Absolut Care of Three
Rivs. v Shah, 101 AD3d 1327, 1329 [2012]; Matter of Mallery v
Shah, 93 AD3d at 938; Matter of Loiacono v Demarzo, 72 AD3d 969,
970 [2010]).

     McCarthy, J.P., Egan Jr., Clark and Aarons, JJ., concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
