Collana v. Perales

Judgment vacated, determination unanimously modified, on the law and as modified, affirmed, without costs, in accordance with the following memorandum: This CPLR article 78 proceeding presents a substantial evidence issue (see, CPLR 7803 [4]). Special Term erred in failing to transfer the proceeding to this court (see, CPLR 7804 [g]). We obviate this error by considering the matter on the record as if it had been transferred (Matter of Hammerl v Mavis, 41 AD2d 724, affd 34 NY2d 579). The Hearing Officer determined that petitioner’s transfer of funds from an accident settlement to his children for reimbursement of loans for living expenses and reimbursement for trips to Italy was not made for purposes other than to qualify for medical assistance. That determination was supported by substantial evidence and must be confirmed (Matter of Tompkins v Melton, 57 AD2d 682). However, the Hearing Officer erred in determining that the amount of the settlement received was $18,000. The uncontradicted evidence was that petitioner received only $13,000 after deductions were made for his wife’s derivative cause of action and attorney’s fees. (Appeal from judgment of Supreme Court, Erie County, Ricotta, J.—art 78.) Present—Dillon, P. J., Den-man, Green, Balio and Lawton, JJ.