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

69
TP 13-01137
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF RONNIE ZUCHEGNO, BY HIS PARENT
AND NATURAL GUARDIAN, ANDREA ZUCHEGNO,
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 (KATE H. NEPVEU 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, Monroe County [J. Scott
Odorisi, J.], entered June 25, 2013) to challenge the determination of
respondent. The determination denied petitioner’s request for a
SleepSafe II bed for her son.

     It is hereby ORDERED that the determination is unanimously
annulled on the law and facts without costs and the petition is
granted.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
to challenge the determination following a fair hearing that denied
her request for a SleepSafe II bed for her son. Upon our review of
the evidence presented by the parties at the fair hearing, we conclude
that the determination that the SleepSafe II bed is not the least
costly device that is medically necessary for petitioner’s son is not
supported by the requisite substantial evidence (see Matter of Godfrey
v Shah, 91 AD3d 1294, 1295-1296). Thus, the determination must be
annulled.




Entered:   February 7, 2014                       Frances E. Cafarell
                                                  Clerk of the Court
