Opinion
November 15, 1995
Appeal from the Supreme Court, Monroe County, Stander, J.
Present — Denman, P.J., Green, Fallon, Doerr and Balio, JJ.
Judgment unanimously reversed on the law without costs, petition granted and matter remitted to Supreme Court and respondent Monroe County Department of Social Services for further proceedings in accordance with the following Memorandum: Respondent New York State Department of Social Services erred in not raising petitioner's community spouse resource allowance (CSRA), following a fair hearing, by the amount of resources attributed to petitioner's decedent once it determined that petitioner's actual monthly income, including income from the CSRA, fell below the monthly minimum maintenance needs allowance (MMMNA) (see, Social Services Law § 366-c [c]; 18 NYCRR 360-4.10 [c] [7]). The resources of the institutionalized spouse should be attributed first to raise the income of the community spouse to the level of the MMMNA before income from the institutionalized spouse is attributed to the community spouse (see, Gruber v Ohio Dept. of Human Servs., 98 Ohio App.3d 72, 647 N.E.2d 861, lv denied 71 Ohio St.3d 1493, 646 N.E.2d 468; Kimnach v Ohio Dept. of Human Servs., 96 Ohio App.3d 640, 645 N.E.2d 825, lv denied 71 Ohio St.3d 1447, 644 N.E.2d 409). We remit this matter to respondent Monroe County Department of Social Services to increase petitioner's CSRA by the amount of the excess resources attributed to petitioner's decedent and to redetermine the Medicaid eligibility of petitioner's decedent. We further conclude that petitioner is entitled to an award of attorney's fees and we remit the matter to Supreme Court for a determination of the reasonable amount of attorney's fees (see, Matter of Johnson v Blum, 58 N.Y.2d 454; Matter of Pawlowski v New York State Dept. of Social Servs., 147 A.D.2d 953, 954; Wiszniewski v New York State Dept. of Social Servs., 140 A.D.2d 952, 953, lv dismissed 72 N.Y.2d 1003; Matter of Palmer v New York State Dept. of Social Servs., 125 A.D.2d 977, 978).