Ziemak v. Commissioner, Department of Ss, No. Cv 99 0498807s (Mar. 28, 2000)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION This is an appeal from the defendant's decision that plaintiff is ineligible for Title XIX benefits because of excess assets. Plaintiff moves to supplement the record by permitting her to present additional evidence before the agency, pursuant to § 4-183 (h) or that the court take additional evidence at the hearing of this appeal because of irregularities in the procedure before the agency, pursuant to § 4-183 (i). The court finds that plaintiff is entitled to prevail under § 4-183 (h) and does not reach plaintiff's claim under § 4-183 (i).

Section 4-183 (h) provides:

"If, before the date set for hearing on the merits of an CT Page 3782 appeal, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that additional evidence be taken before the agency upon conditions determined by the court. The agency may modify, its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.

The plaintiff contests the defendant's evaluation of a certain mortgage note at $73,000 in calculating plaintiff's eligibility. Submitted into evidence at the hearing was "Exclusive Authorization to Sell Promissory Note or Mortgage" by Nutmeg Funding Group for net cash of $72,307.27. Both the hearing officer and plaintiff's non-attorney representative treated the document as an offer to buy the mortgage note at that price. More significantly, for purposes of this motion, plaintiff represents that Nutmeg Funding Group has gone out of business since the hearing. As a result of Nutmeg Funding Group no longer being able to market the note, the basis for defendant's calculation of the plaintiff's assets is put in question. The court finds that the value of the mortgage note is material to the decision in this case and further finds that the evidence of Nutmeg Funding Group going out of business occurred after the hearing and so there was good reason for failure to present that fact at the hearing.

The court orders the defendant to hear additional evidence as to the value of the mortgage note and as to its accessability, and based on that evidence, the Department shall re-determine whether or not plaintiff is eligible for assistance under Title XIX.

Robert Satter Judge Trial Referee