Opinion
1191 TP 19–01327
12-20-2019
In the Matter of ESTATE OF Vimal SABHARWAL, Jennifer Flannery, Erie County Administrator, as Administrator, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH, and Al Dirschberger, Commissioner, Erie County Department of Social Services, Respondents.
BROWN CHIARI LLP, BUFFALO (JEFFREY M. SHALKE OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT NEW YORK STATE DEPARTMENT OF HEALTH. BONNIE A. MCLAUGHLIN, BUFFALO, FOR RESPONDENT AL DIRSCHBERGER, COMMISSIONER, ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES.
BROWN CHIARI LLP, BUFFALO (JEFFREY M. SHALKE OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT NEW YORK STATE DEPARTMENT OF HEALTH.
BONNIE A. MCLAUGHLIN, BUFFALO, FOR RESPONDENT AL DIRSCHBERGER, COMMISSIONER, ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER 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 annul that part of a determination made after a fair hearing that decedent was ineligible for Medicaid for a period of 22.327 months on the ground that she had made uncompensated transfers of assets during the look-back period (see 42 USC § 1396p [c][1][B]; Social Services Law § 366[5][a], [e][1][vi] ). Petitioner failed to preserve for our review her contention that the transferred real property was an exempt homestead because the issue was not raised at the fair hearing (see Matter of Sarcinelli v. New York State Dept. of Motor Vehs., 166 A.D.3d 1594, 1595, 85 N.Y.S.3d 918 [4th Dept. 2018] ; Matter of Schaffer v. Zucker , 165 A.D.3d 1266, 1267, 85 N.Y.S.3d 556 [2d Dept. 2018] ). Furthermore, contrary to petitioner's contention, we conclude that substantial evidence supports the determination that decedent failed to make a "satisfactory showing" that "the assets were transferred exclusively for a purpose other than to qualify for medical assistance" ( § 366[5][e][4][iii][B] ; see generally Matter of Peterson v. Daines , 77 A.D.3d 1391, 1392–1393, 909 N.Y.S.2d 611 [4th Dept. 2010] ).