IN RE: Mildred EGAN (1998)

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent New York State Department of Social Services dated October 29, 1996, which, after a fair hearing, affirmed a decision of the respondent New York City Department of Social Services, authorizing Personal Care Services to the petitioner for only four hours per day, the petitioner appeals from a judgment of the Supreme Court, Kings County (Barasch, J.), entered July 16, 1997, which denied her petition on the merits.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof denying the petition on the merits and substituting therefor a provision dismissing the petition as academic;  as so modified, the judgment is affirmed, without costs or disbursements.

 The petitioner commenced this CPLR article 78 proceeding to review the respondents' determination authorizing only four hours of daily personal care, and to direct them to authorize 24–hour care.   While the proceeding was pending, 24–hour care was authorized.   Consequently, the Supreme Court should have dismissed the petition as academic rather than on the merits (see, Matter of Gold–Greenberger v. Human Resources Admin. of City of N.Y., 77 N.Y.2d 973, 571 N.Y.S.2d 897, 575 N.E.2d 383).

 Insofar as the petitioner contends that the matter is not academic since she is entitled to receive reimbursement for the supplemental home care assistance for which she paid, she failed to raise this issue in her petition and she may not do so now for the first time on appeal (see, Matter of Borrero v. New York City Dept. of Correction, 197 A.D.2d 418, 602 N.Y.S.2d 392).

MEMORANDUM BY THE COURT.