Vickers v. Toia 66 A.D.2d 747

In this article 78 proceeding brought to review the denial of a medical assistance authorization for sex reassignment surgery, the judgment of the Supreme Court, New York County, entered June 24, 1977, dismissing the petition, is unanimously affirmed, without costs and without disbursements, and without prejudice to a new application to the New York City Department of Social Services based on a more complete medical showing that the medical assistance is necessary. The fact of a sex change from male to female is not without precedent. (Cf. Raskind v Raskind, 62 AD2d 952.) The commissioner determined that there was an insufficient showing, however, that the operation sought fell within the purview of subdivision 2 of section 365-a of the Social Services Law in that it was necessary to cure a condition that might cause "acute suffering, endanger life, result in illness or infirmity, [or] interfere with his capacity for normal activity”. (See Matter of Denise R. v Lavine, 39 NY2d 279.) Nonetheless, it has been indicated that there could be psychiatric testimony to the effect that it would be medically unacceptable to leave the petitioner, who had received female hormone treatments and surgery, including breast augmentation, in an in-between state. Accordingly, this determination is without prejudice to a new application. Concur-Kupferman, J. P., Evans, Lane, Sandler and Sullivan, JJ.