Opinion
February 2, 1990
Appeal from the Supreme Court, Monroe County, Willis, J.
Present — Boomer, J.P., Green, Pine, Lawton and Davis, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: Upon our review of the record, we find respondent's determination is supported by substantial evidence (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176). Petitioner failed to proffer competent medical evidence to meet her burden of overcoming the presumption that she was not expected to return to her home (see, 18 NYCRR 360.23 [s]; see also, Matter of Dvelis v New York State Dept. of Social Servs., 146 A.D.2d 875, 877, lv denied 74 N.Y.2d 608). Petitioner's medical evidence was at best ambiguous and cannot provide substantial evidence that petitioner was "expected to return home" (18 NYCRR 360.23 [s]). The doctor's letter tendered by petitioner does "`not constitute a substitute for affirmative evidence'" (Matter of Palmer v New York State Dept. of Social Servs., 125 A.D.2d 977, 978, quoting Matter of Dauer v Perales, 116 A.D.2d 573, 576). In view of our determination, an award of counsel fees is not appropriate (see, Matter of Misuraca v Perales, 120 A.D.2d 592; Matter of Patterson v Blum, 86 A.D.2d 893, 894).