Opinion
2012-01-26
In the Matter of Dominick GIAQUINTO, Respondent–Appellant, v. COMMISSIONER OF the NEW YORK STATE DEPARTMENT OF HEALTH, Appellant–Respondent, et al., Respondent.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for appellant-respondent. Pierro Law Group, Latham (Louis W. Pierro of counsel), for respondent-appellant.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for appellant-respondent. Pierro Law Group, Latham (Louis W. Pierro of counsel), for respondent-appellant.
Before: MERCURE, Acting P.J., LAHTINEN, SPAIN, MALONE JR. and KAVANAGH, JJ.
MERCURE, Acting P.J.
(1) Appeal from a judgment of the Supreme Court (Ferradino, J.), entered November 8, 2010 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Health that, among other things, directed an evaluation of petitioner's excess resources, and (2) cross appeals from a judgment of said court, entered March 25, 2011, which awarded petitioner counsel fees under 42 USC §§ 1983 and 1988.
This marks the second occasion that the present case has been before us (39 A.D.3d 922, 833 N.Y.S.2d 301 [2007], revd. 11 N.Y.3d 179, 867 N.Y.S.2d 716, 897 N.E.2d 116 [2008] ). Briefly stated, petitioner was a resident of a nursing home. After his application for Medicaid benefits was denied on the ground that he and his wife had excessive income and resources, he requested a fair hearing. Respondent Commissioner of Health (hereinafter respondent) affirmed the denial, but found that the wife's allotment of marital assets beyond Medicaid's reach must be increased. Respondent remanded the application to the Montgomery County Department of Social Services to determine how much of petitioner's excess resources would be necessary to allow the wife to purchase a single premium immediate life annuity, and directed that petitioner's application be reexamined after any additional excess resources were purged ( see 42 USC § 1396r–5 [d], [e][2][C]; Social Services Law § 366–c [8] ).
Petitioner then commenced this CPLR article 78 proceeding to challenge respondent's determination and obtain an award of counsel fees. Supreme Court granted the petition and awarded counsel fees, finding that respondent had departed without explanation from prior precedent ruling that a community spouse could not be directed to purchase an annuity ( see Matter of Charles A. Field Delivery Serv. [ Roberts], 66 N.Y.2d 516, 520, 498 N.Y.S.2d 111, 488 N.E.2d 1223 [1985] ). Respondent appealed, arguing solely that petitioner was not entitled to the counsel fees awarded by Supreme Court pursuant to 42 USC §§ 1983 and 1988. The Court of Appeals ultimately concluded that counsel fees could be awarded only if petitioner had succeeded on his federal statutory claim (11 N.Y.3d 179, 190–192, 867 N.Y.S.2d 716, 897 N.E.2d 116 [2008] ). Because Supreme Court had resolved the matter on state law grounds without explicitly addressing petitioner's federal claim, the Court of Appeals remitted for a determination of the federal claim “for the purpose of awarding attorney fees” ( id. at 191, 867 N.Y.S.2d 716, 897 N.E.2d 116 [internal quotation marks and citation omitted] ). Upon remittal, Supreme Court found the claim to have merit and, in a separate judgment, awarded over $100,000 in counsel fees and costs to petitioner. Respondent appeals from both judgments, while petitioner cross-appeals only from the judgment specifying the amount of the fee award.