The commissioner's decision finding retroactive relief beyond June 1, 1977 inappropriate in light of the Federal court decision was erroneous as a matter of law (see Harris v. Lavine, 43 A.D.2d 894). We have held, however, that "Retroactive reimbursement should be determined in the light of all circumstances of a particular case and should not provide a windfall" (Matter of Moran v. Lascaris, 61 A.D.2d 405, 409). Inasmuch as the record before us does not contain sufficient data for us to make that determination, the matter must be remitted to Supreme Court, Monroe County, to consider the appropriateness of retroactive reimbursement.
rvices Law provided, in pertinent part, that medical assistance benefits would only be paid where an applicant had "not made a voluntary assignment or transfer of property for the purpose of qualifying for such assistance" and that "[a] transfer of property made within one year of the date of application shall be presumed to have been made for the purpose of qualifying for such assistance." The statute was subsequently construed by the Court of Appeals to be inapplicable to an exempt homestead on the ground, inter alia, that if an applicant for assistance could retain his residence as an exempt resource and still receive assistance, then it was totally illogical to conclude that a gratuitous transfer of the foregoing was accomplished for the purpose of qualifying for such assistance (Matter of Mondello v D'Elia, 39 N.Y.2d 978, 980, revg 49 A.D.2d 582; see Matter of Fluette v. D'Elia, 68 A.D.2d 889; Matter of Troll v. Toia, 68 A.D.2d 927, citing Matter of Case v. Berger, 56 A.D.2d 714; Matter of Moran v. Lascaris, 61 A.D.2d 405, 407; Matter of Brown v. Toia, 59 A.D.2d 1044; Matter of Mager v. Berger, 57 A.D.2d 725; Matter of Clark v. Lavine, 55 A.D.2d 932; cf. Matter of Paige v. D'Elia, 39 N.Y.2d 981 [applicant not rendered ineligible for benefits even though transferee without consideration immediately sells the residence and utilizes the proceeds]). In an effort to close this "gap" in the statute (Matter of Mondello v. D'Elia, supra, p 980), the law was subsequently amended to its present form (see L 1978, ch 612, § 1; L 1977, ch 755, § 1; for legislative intent, see Legislative Memorandum, 1977 McKinney's Session Laws of N.Y., pp 2422-2423).
Effective August 5, 1977, section 366 (subd 1, par [e]) of the Social Services Law was amended to render ineligible medical assistance recipients who have made voluntary transfers of property "(i) for the purpose of qualifying for such assistance, or (ii) for the purpose of defeating any current or future right to recovery of medical assistance paid, or for the purpose of qualifying for, continuing eligibility for or increasing need for medical assistance" (L 1977, ch 755). As we noted recently, this amendment cured the defect which existed in the statute (Matter of Moran v. Lascaris, 61 A.D.2d 405, 407). We do not interpret either the decision in Matter of Mondello v. D'Elia ( 39 N.Y.2d 978, supra) or the subsequent amendment to section 366 (subd 1, par [e]) of the Social Services Law to mean that a commissioner of a local agency may not pursue the remedies given to a creditor under the Debtor and Creditor Law. While it is true that in Mondello (supra, p 980) the court stated that transfers of exempt homesteads "impair the possibility of a future recoupment", the court was not presented with a question of recoupment, but rather with one of eligibility.
The petitioner's daughter Florence Murphy (one of the attorneys in fact) did not account for the disposition of the proceeds, except to say that an undisclosed portion had been used to pay doctors bills. The evidence further indicated that the sale of the property to the third party had not been disclosed on the petitioner's last application for medical assistance. Insofar as Matter of Moran v. Lascaris ( 61 A.D.2d 405) may hold contrary to the views expressed herein, we decline to follow it. Hopkins, J.P., Martuscello, Gulotta and Shapiro, JJ., concur.
The decision was unanimous. Retroactive reimbursement to a medical assistance recipient should be determined in light of all circumstances of a particular case and should not provide a windfall ( Moran v Lascaris, 61 A.D.2d 405). It seems to this court, before whom the above-mentioned issue has been squarely placed, that under the facts and circumstances of this case and in the interests of justice, petitioner herein is entitled to reimbursement for any moneys she expended for medical care and services expenses which exceeded her monthly surplus in the three months preceding her date of application for Medicaid benefits.
In passing, I note that even if it could be said that petitioner had current need at the time of application and was otherwise eligible, reimbursement of the dollar amount for the cost of transportation at this time and under the circumstances presented would be denied since it would in effect, result in a windfall to petitioner (see, generally, Matter of Moran v Lascaris, 61 A.D.2d 405).