Van Dyke v. New York State Department of Social Services

Levine, J. (concurring in part and dissenting in part).

In our view, the determination of the State Commissioner of Social Services (hereinafter Commissioner) should be confirmed in its entirety. With regard to the June 1988 and October 1988 transfers of funds for the purchase of the mobile home, the majority concludes that there is insufficient evidence in the record to support the Commissioner’s determination that petitioner failed to rebut the statutory presumption that the transfers were made for the purpose of qualifying for medical assistance. We disagree.

The burden of rebutting the presumption that a transfer was made for the purpose of qualifying for medical assistance is on the applicant and is satisfied only with "evidence * * * establishing] that the transfer was exclusively for some other purpose” (Social Services Law § 366 [5] [b] [2] [emphasis supplied]; see, Matter of Cullen v New York State Dept. of Social Servs., 155 AD2d 857 ; Matter of Lipkin v New York State Dept. of Social Servs., 146 AD2d 964 ). Here, the relevant hearing evidence was that petitioner’s own physician described her as "slightly demented and confused” as of December 1987 and noted that the change in petitioner’s mental status was "suggestive of early senile dementia or Alzheimer’s disease”. In late April 1988, it was the opinion of petitioner’s physician that, although there was no reason to admit her to a nursing home, she was an "unreliable historian” and required "ongoing medical and support care” which, at the time, was being accomplished at home. In May 1988 petitioner’s daughter obtained a power of attorney, supporting an inference that petitioner, then 86 years old, was having difficulty handling her own financial affairs. Shortly thereafter in June 1988, the daughter made the first of two transfers of substantial funds from the joint account to pay for the mobile home, *513 title to which was not taken in petitioner’s name. Petitioner’s daughter testified that she was unaware of petitioner’s deteriorating medical condition until February 1989 and that she had no reason to suspect at the time of the transfers that petitioner would require nursing home care. She also testified that the mobile home was purchased in order to provide more comfortable and convenient housing for herself, her husband and petitioner, but was unable to explain why the mobile home was placed in her name.

From the foregoing, the Commissioner could readily find that the statutory presumption was not overcome by credible evidence (see, Matter of Cullen v New York State Dept. of Social Servs., supra, at 858; Matter of Lipkin v New York State Dept. of Social Servs., supra). Unlike the majority, we cannot conclude that there is no evidentiary support in the record for the Commissioner’s finding that petitioner was in poor health at the time of the subject 1988 transfers of funds. Clearly, that finding involved the resolution of issues of credibility and the drawing of inferences, both of which are exclusively functions of the Commissioner (see, State Div. of Human Rights v Wagner, 39 NY2d 865, 866 ; Matter of Cullen v New York State Dept. of Social Servs., supra, at 857). Thus, the Commissioner was entitled to disregard the self-serving testimony of petitioner’s daughter, who undeniably benefited from the mobile home purchase (see, Matter of Lipkin v New York State Dept. of Social Servs., supra, at 965). Considered together with the total inability of petitioner’s daughter to suggest an alternative purpose for not placing the mobile home at least partially in petitioner’s name, we find no basis to disturb the determination that petitioner failed to establish that the transfers of funds for the mobile home purchase were exclusively for some purpose other than qualifying for medical assistance.