Clement v. Lavine

Simons, J.

The issue on this appeal is what recourse does the Department of Social Services have, if any, when a recipient presently receiving public assistance, transfers¹ without fair consideration, her only resource (a dwelling house and 21-acre farm) to a relative not legally responsible for the recipient’s support (Social Services Law, § 101).

Appellant Adelaide Clement is 79 years old. She and her husband were certified for medicaid assistance in 1969 and she has received such assistance continuously since that time (Mr. Clement died in July, 1971 but he received assistance until his death). At the time that Mr. and Mrs. Clement applied for assistance in 1969 they informed the Monroe County Department of Social Services that they owned a farmhouse and 21 acres of land in Webster, New York, as tenants by the entirety. Shortly after her husband’s death appellant transferred this property to her son, reserving a life use of the property to herself. The deed showed no monetary consideration for the conveyance. The transfer was recorded in the Monroe County Clerk’s office but the County Department of Social Services did not. learn of it until appellant applied for recertification in February, 1974. The county department recertified appellant for assistance at that time, "subject to the property in question being transferred back to A. Clement, patient.” When appellant and her son refused to do this the county department discontinued appellant’s medicaid assistance on the ground that she had voluntarily transferred an available resource to make herself eligible for public assistance. Respondent commissioner affirmed the County Department of Social Services after a fair hearing.

A person may not transfer available resources for the purpose of receiving public assistance (Social Services Law, § 366, subd 1, par [e]; 18 NYCRR 360.8 [c]). In determining eligibility for assistance a homestead is exempt (Social Services Law, § 366, subd 2, par [a], cl [1]; 18 NYCRR 360.6 [b]) and the transfer of an exempt homestead does not result in the loss of eligibility (18 NYCRR 360.8 [a]). 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 AD2d 582). There was substantial evidence to support his decision.

Appellant’s son contended that the transfer was pursuant to an "oral contract” made about 10 years earlier. The commissioner refused to accept this evidence, finding that the contract was unenforceable and represented nothing more than a vaguely expressed intention that the son was the natural beneficiary of his parents’ property after their deaths. His findings were supported by evidence that the ownership (except for the life estate reserved to the chronically ill grantor) was transferred without fair consideration and by deed, promptly after the death of appellant’s husband, rather than by the customary method of testamentary disposition. The only consideration alleged for the transfer was love and affection and the care of the property by the son, services for which presumably he was fairly compensated by being permitted to live on the farm, rent free (cf. Sweeney v D’Elia, 49 AD2d 593). The explanation that the transfer was to enable the son to put up collateral for a funeral loan is not convineing. The property could have remained in appellant’s name and been used for such purpose.

Respondents concede that there was no actual fraud. Nevertheless, the transfer is not unlike a transfer made by an insolvent debtor without fair consideration which is impliedly fraudulent as to the grantor’s creditors (cf. Debtor and Creditor Law, § 273 et seq. and Matter of Arlasky v Dimitri, 38 AD2d 665). The commissioner could properly find on this record that the parties’ actions were calculated to preserve ownership of the farm while maintaining the recipient’s eligibility for assistance.

Appellant argues that the transfer was more than one year after certification and more than one year before the application for recertification in 1974 and, therefore, that the statutory presumption that the transfer was made to obtain benefits does not apply (see Social Services Law, § 366, subd 1, par [e]; 18 NYCRR 360.8 [b]). It is enough to say that the commissioner did not rely upon the presumption and that there was substantial evidence to support his decision without it, but appellant’s position loses a good deal of its force in view of her failure, contrary to statute, to inform fully the department of changes in her financial position (Social Services Law, § 366-a, subd 5-a).

The fact remains that the transfer was made without fair consideration at a time when appellant had received substantial benefits, was receiving benefits and thereafter continued to receive benefits. Perhaps the department should have recertified the patient each year as its regulations now require (surely its denial would have passed muster if it had denied recertification within a year of the transfer), but its failure to do so does not estop it from questioning the transfer at this time. The taxpayers have assumed the responsibility of supporting our chronically ill and aged citizens—but they have not guaranteed the inheritance of the heirs of the unfortunately sick (Social Services Law, § 363).

The judgment should be affirmed.

1 . The property owned by the recipient was subject to lien after the recipient’s death, but not before, and available for recoupment of the public funds advanced (Social Services Law, § 369, subd 1, par [b], cf. former Social Welfare Law, §§ 321, 322 repealed by L 1974, ch 1080, § 3). After transfer, of course, it was not.