Determination confirmed and proceeding dismissed on the merits, without costs. There was no evidence in this proceeding to support the finding of an agreement to convey the subject premises in return for past services rendered to petitioner by her son (cf. Sweeney v D'Elia, 49 A.D.2d 593), whereas the evidence did support the determination that had the conveyance been a cash transfer, petitioner would have realized funds to be made available for her medical care. Inasmuch as the county commissioner also determined that more than $17,000 was paid by the transferee for petitioner's care after the voluntary transfer to him, and that, in the same circumstances, the fair market value of the home will shortly have been paid by the son, the determination was neither arbitrary nor capricious (cf. Matter of Paige v D'Elia 49 A.D.2d 882; Mondello v D'Elia, 49 A.D.2d 582). Martuscello and Latham, JJ., concur; Rabin, Acting P.J., Margett and Shapiro, JJ., concur on constraint of Matter of Paige v D'Elia ( 49 A.D.2d 882) and Mondello v D'Elia ( 49 A.D.2d 582).
October 6, 1975 In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Department of Social Services of the State of New York, dated April 9, 1974, made after a statutory fair hearing, which affirmed a determination of the respondent Commissioner of Social Services of the County of Nassau that a medical assistance authorization be discontinued, petitioner appeals from a judgment of the Supreme Court, Nassau County, dated October 31, 1974, which denied the application, dismissed the petition and confirmed the determination of the respondent State Commissioner. Judgment affirmed, without costs (see Mondello v D'Elia, 49 A.D.2d 582). Latham and Brennan, JJ., concur; Hopkins, Acting P.J., Margett and Shapiro, JJ., concur under the constraint of Mondello v D'Elia ( 49 A.D.2d 582) and Shapiro, J., on the further ground that there is no proof in the record that we are dealing with a "homestead".
Prior to 1977, section 366 (subd 1, par [e]) of the Social Services 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).
The county department determined that although the house was an exempt homestead while petitioner owned it, upon transfer it became a resource whose fair market value should have been looked to for her maintenance. Although the State commissioner took the same position in his determination, he now concedes that in light of Matter of Mondello v D'Elia ( 39 N.Y.2d 978, revg 49 A.D.2d 582) and our decision in Matter of Case v Berger ( 56 A.D.2d 714), the transfer of the homestead did not render petitioner ineligible for medical assistance. Although the county department does not make a similar concession, we find that Mondello is determinative of this issue.
While property qualifying as a homestead may continue as such and be exempt during a period of hospitalization (18 NYCRR 360.6 [b]), the commissioner specifically found that at the time of transfer appellant's property did not qualify as a homestead because it is not expected that Mrs. Clement will ever be discharged from the hospital. He therefore found the real estate was an available resource to her and that it was transferred for the purpose of obtaining public assistance in violation of the statutes and regulations (see Mondello v D'Elia, 49 A.D.2d 582). There was substantial evidence to support his decision.
The record establishes that the transfer of petitioner's dwelling was for value, rebutting the statutory presumption. It is therefore unnecessary to consider whether the property was exempt from the statutory presumption as a "homestead" (Social Services Law, § 366, subd 2, par [a], cl [1]; 18 NYCRR 360.23 [b], 360.8; cf. Mondello v D'Elia, 49 A.D.2d 582). Rabin, Acting P.J., Hopkins, Martuscello, Brennan and Shapiro, JJ., concur.