59 A.D.2d 282 | N.Y. App. Div. | 1977
A resolution of the issues herein requires a brief recitation of factual background.
Our review of respondents’ determination must begin with an affirmance of the conclusion that Sharon, "at the time of her accident” (emphasis supplied), was a resident of California. With respect to this issue, appellate review is restricted to the question of whether the determination below is rational (CPLR 7803, subd 4; Matter of Pell v Board of Educ., 34 NY2d 222, 231) and interference with such determination is always withheld in the absence of irrationality traceable to unsupportable proof or clear errors of law. No such reversible nexus is present here.
We turn now to the more troublesome problem of whether an individual, concededly incompetent, though not so declared judicially, may re-establish residency in New York, her domicile of origin, so as to be eligible for medical assistance under section 366 (subd 1, par [b]) of the Social Services Law.
The Court of Appeals in Matter of First Trust & Deposit Co. v Goodrich (3 NY2d 410) has held that the domicile of an infant may be changed by his natural guardian or order of the court, but found it unnecessary to determine if such were the case when an incompetent was involved (id., p 415 [citing Matter of Robitaille, 78 Misc 108]). In Robitaille, a long time domiciliary of New York was rendered incompetent before he could carry out his intent to return to Canada upon retirement. A committee was appointed by a New York court and the incompetent was returned to Canada where he died five years later. The change of domicile was not authorized by any court. Surrogate’s Court of New York County determined that the decedent was a domiciliary of Canada despite the fact that he could not have formulated an intent at the time his committee moved him to Canada. The Surrogate noted that "[t]he right of a guardian to remove his ward or of a committee to remove his charge * * * into a neighboring state of the Union, is hardly to be doubted at this late date [citations omitted] if it is done bona fide.” (id., pp 115, 117). While we are unable to share the Surrogate’s confidence that a guardian’s or a committee’s right to change the domicile or residence of their ward or charge is without doubt, there being no
The determination should be annulled, and the petition granted, with one bill of costs to petitioner against respondents.
Sweeney, J. P., Larkin, Mikoll and Herlihy, JJ., concur.
Determination annulled, and petition granted, with one bill of costs to petitioner against respondents.
. No reason appears in the record why Sharon’s mother was appointed conservator rather than a committee. While it is true that the appointment of a conservator normally requires a finding of residency (Mental Hygiene Law, § 77.01), respondents were not parties to the conservatorship proceedings and are not now collaterally estopped from raising the residency issue (Greenthal & Co. v Lefkowitz, 41 AD2d 818).
. "Residence” for purposes of eligibility for New York Medicaid has been interpreted as "domicile” (Matter of Ruiz v Lavine, 49 AD2d 1, 4-5; cf. Matter of Corr v Westchester County Dept. of Social Servs., 33 NY2d 111, 115-117).