IN RE: ANNE N. ZICKL

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

IN RE: ANNE N. ZICKL, PETITIONER, v. RICHARD F. DAINES, M.D., COMMISSIONER, NEW YORK STATE DEPARTMENT OF HEALTH, RESPONDENT.

TP 10–01858

Decided: April 29, 2011

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. LAW OFFICES OF RANDOLPH P. ZICKL, BATAVIA (RANDOLPH P. ZICKL OF COUNSEL), FOR PETITIONER. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Genesee County [Michael F. Griffith, A.J.], entered September 8, 2010) to review a determination of respondent.   The determination applied a net available monthly income of $292.28 toward the cost of petitioner's institutional care.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum:  Petitioner, a patient in a skilled nursing facility, commenced this CPLR article 78 proceeding seeking to annul the determination that she is obligated to apply her net available monthly income in the amount of $292.28 to her institutional care, rather than to the needs of her spouse who resides in the community.   As a preliminary matter, we note that the matter was improperly transferred to this Court inasmuch as the petition alleges only that the determination is arbitrary and capricious and does not raise an issue of substantial evidence (see CPLR 7804[g] ).  Nevertheless, we review the merits of petitioner's contention in the interest of judicial economy (see Matter of Burgin v. Keane, 19 AD3d 1127).

Patricia L. Morgan

Clerk of the Court