Opinion
Argued September 2, 1977
Decided October 4, 1977
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, NATHANIEL T. HELMAN, J.
Arthur C. Snitjer, Emilio Gautier and Ira S. Schneider for appellant.
Louis J. Lefkowitz, Attorney-General (William J. Lee, Samuel A. Hirshowitz and Herbert J. Wallenstein of counsel), for James R. Dumpson, respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The hearing officer and the Commissioner of Social Services assigned an incorrect reason for denial of reimbursement for burial expenses. Normally if there were not a reversal there should be a remittal. (Matter of Barry v O'Connell, 303 N.Y. 46; cf. Matter of Montauk Improvement v Proccacino, 41 N.Y.2d 913.) Where, however, as here, petitioner's claim must fail as a matter of law in view of the affirmed finding of fact that the deceased was not a "`recipient of public assistance and care'" within the meaning of subdivision 4 of section 141 of the Social Services Law, no useful purpose would be served by a remittal.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order affirmed, without costs, in a memorandum.