Benvenuto v. Smith

¶1dissents in a memorandum as follows: The decision of the New York City Department of Social Services denies the petitioner medical assistance. Prior to January, 1976, the petitioner Frank Benvenuto owned and operated a stationery store business. During that time, he was twice admitted to a hospital for pulmonary and cardiac disease, and the hospitalizations were covered by assistance from the New York City Department of Social Services. In October, 1975, he applied for Social Security *775disability. In the beginning of 1976, he transferred the stationery store to his son without consideration. The tax records show that the net income from the store in 1974 was $6,000. When in May, 1976, Mr. Benvenuto again applied for medical assistance, it was rejected on the ground that the store had been transferred without a quid pro quo, even though it is obvious that Mr. Benvenuto in view of his severe illness could not possibly operate it, and it might have to be closed if his son had not undertaken to run it. The city agency explains the previous medical assistance on the ground that when he owned the business, the agency had an asset of some value to which it could resort to recover part of the payments, and now that the asset has been disposed of without consideration, the situation is different. The State Department of Social Services affirmed the decision of the city agency, citing section 366 (subd 1, par [e]) of the Social Services Law, which provides as follows: "Medical assistance shall be given under this title to a person who requires such assistance and who has not made a voluntary assignment or transfer of property for the purpose of qualifying for such assistance. A transfer of property made within one year of the date of application shall be presumed to have been made for the purpose of qualifying for such assistance.” I would annul the determination and would reverse and remand for reconsideration. It is quite clear that the operation of the stationery store or the lack of it had little relationship to the previous medical assistance qualification, and the transfer of the property should not put these petitioners in a worse position. It was not transferred "for the purpose of qualifying for such assistance.”