Opinion
March 5, 1979
Proceeding pursuant to CPLR article 78 to review a determination of the respondent State commissioner dated April 14, 1977 and made after a statutory fair hearing, which affirmed a determination of the local agency denying the petitioner's application for medical assistance benefits. Petition granted to the extent that the determination is annulled, on the law, without costs or disbursements, and the respondents are directed to provide the petitioner with retroactive benefits for the period from January 23, 1977 to March 8, 1978. Proceeding otherwise dismissed, on the merits. Petitioner's application for medical assistance was denied on the ground that on November 30, 1976, while petitioner was hospitalized for a skull fracture, and prior to his transfer to a nursing home, he transferred his residence to his daughter and son-in-law. It is now quite clear that under section 366 (subd 1, par [e]) of the Social Services Law, as it read in November, 1976, the petitioner's voluntary transfer of his exempt homestead did not disqualify him from receiving medical assistance (see Matter of Mondello v. D'Elia, 39 N.Y.2d 978). This is so despite the fact that petitioner was hospitalized when the transfer was made (see Matter of Paige v D'Elia, 39 N.Y.2d 981). Therefore, the State commissioner's determination affirming the denial of medical assistance benefits must be annulled. Since the medical assistance benefits were denied for the period from January 23, 1977 until March 8, 1978, petitioner is entitled to retroactive reimbursement for that period (see Matter of Dillingham v. Lavine, 48 A.D.2d 657). Titone, J.P., Suozzi, Gulotta and Martuscello, JJ., concur.