Rezoagli v. Toia 62 A.D.2d 1020

Proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Commissioner of the New York State Department of Social Services, dated March 23, 1976 and made after a fair hearing, which affirmed a determination of the local agency denying petitioner’s application for medical assistance. Petition granted to the extent that the determination is annulled, on the law, without costs or disbursements, and the matter is remanded to the respondent State commissioner for a de novo hearing and determination. Petitioner’s application was denied because of a lack of prior approval by the medical director of the local agency pursuant to 18 NYCRR 505.9 (b). At the fair hearing, which the 83-year-old petitioner could not attend because of her confinement in a nursing home, she was represented by her daughter, Ms. Battaglia, who appeared without counsel. Ms. Battaglia was not accorded the opportunity to make a clear presentation of her evidence on the issue of the agency’s prior approval and was not advised of her right to procure an adjournment of the hearing to enable her to produce witnesses essential to her case. Additionally, certain documentary evidence has become available to petitioner since the holding of the fair hearing. That evidence calls for reconsideration in the interests of justice. Hopkins, J. P., Damiani, Rabin and Shapiro, JJ., concur.