Opinion
910 TP 14-00128
09-26-2014
In the Matter of Brenda BERNIER, Petitioner, v. Nirav R. SHAH, Commissioner, New York State Department of Health, Respondent.
Neighborhood Legal Services, Inc., Buffalo (Diana M. Straube of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of Counsel), for Respondent.
Neighborhood Legal Services, Inc., Buffalo (Diana M. Straube of Counsel), for Petitioner.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, VALENTINO, and WHALEN, JJ.
Opinion
MEMORANDUM:Petitioner commenced this CPLR article 78 proceeding seeking to review respondent's determination made after a fair hearing denying her a modular wheelchair ramp. Respondent determined that the ramp did not meet the definition of durable medical equipment (DME) pursuant to 18 NYCRR 505.5(a)(1). Contrary to petitioner's contention, respondent's determination is supported by substantial evidence (see generally Matter of Coffey v. D'Elia, 61 N.Y.2d 645, 648, 472 N.Y.S.2d 80, 460 N.E.2d 221 ; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ). In addition, “[a]n agency's interpretation of its regulations must be upheld unless the determination is irrational and unreasonable” (Matter of Taher v. Novello, 278 A.D.2d 809, 810, 718 N.Y.S.2d 520, lv. denied 96 N.Y.2d 712, 729 N.Y.S.2d 439, 754 N.E.2d 199 [internal quotation marks omitted]; see Matter of Elcor Health Servs. v. Novello, 100 N.Y.2d 273, 280, 763 N.Y.S.2d 232, 794 N.E.2d 14 ; Matter of Gaines v. New York State Div. of Hous. & Community Renewal, 90 N.Y.2d 545, 548–549, 664 N.Y.S.2d 249, 686 N.E.2d 1343 ), and we conclude that respondent's determination that ramps do not fit within the definition of DME is rational. DME is equipment that is “primarily and customarily used for medical purposes” and that is “generally not useful to a person in the absence of an illness or injury” (18 NYCRR 505.5 [a][1][ii], [iii] ). We agree with respondent that ramps may be useful to people, generally, even in the absence of an illness or injury. We have considered petitioner's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.