STARKWEATHER KELLY v. WING (1997)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Justin STARKWEATHER, an Infant, by Leslie KELLY, Guardian of his Property, Petitioner, v. Brian WING, as Acting Commissioner of New York State Department of Social Services, Respondent.

Decided: September 30, 1997

Before PINE, J.P., and LAWTON, WISNER, CALLAHAN and DOERR, JJ.

Neighborhood Legal Services by William Martroleo, Buffalo, for Petitioner. N.Y.S. AttorneyGeneral's Office (Aida P. Reyes, of counsel), Buffalo, for Respondent.

Petitioner's infant is a 14-year-old boy who is completely wheelchair dependent and without the strength to propel a manual wheelchair because of cerebral palsy, spastic quadriplegia and other ailments. He lives with his 60-year-old grandparents, who have a history of back problems, in a mobile home that has been renovated to accommodate his needs. He has no personal care aides and is totally reliant upon his grandparents when not at school. Petitioner presented medical proof establishing that a specially adapted power wheelchair is needed to increase the independence and functional ability of petitioner's infant, especially in emergency situations, and to prevent the development of “learned helplessness”. Because respondent did not offer any contrary proof, the determination that a customized power wheelchair is not medically necessary is not supported by substantial evidence (see, Social Services Law § 365-a; Matter of Gartz v. Wing, 236 A.D.2d 890, 654 N.Y.S.2d 702; Matter of Dobson v. Perales, 175 A.D.2d 628, 572 N.Y.S.2d 562). We therefore annul the determination and grant the petition.

Determination unanimously annulled on the law without costs and petition granted.

MEMORANDUM:

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