| Matter of Giaquinto v Commissioner of the N.Y. State Dept. ofHealth |
| 2012 NY Slip Op 00437 [91 AD3d 1224] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Dominick Giaquinto, Respondent-Appellant, vCommissioner of the New York State Department of Health, Appellant-Respondent, et al.,Respondent. |
—[*1] Pierro Law Group, Latham (Louis W. Pierro of counsel), for respondent-appellant.
Mercure, A.P.J. (1) Appeal from a judgment of the Supreme Court (Ferradino, J.), enteredNovember 8, 2010 in Albany County, which granted petitioner's application, in a proceedingpursuant to CPLR article 78, to review a determination of respondent Commissioner of Healththat, among other things, directed an evaluation of petitioner's excess resources, and (2) crossappeals from a judgment of said court, entered March 25, 2011, which awarded petitionercounsel fees under 42 USC §§ 1983 and 1988.
This marks the second occasion that the present case has been before us (Matter of Giaquinto v Commissioner ofN.Y. State Dept. of Health, 39 AD3d 922 [2007], revd 11 NY3d 179 [2008]).Briefly stated, petitioner was a resident of a nursing home. After his application for Medicaidbenefits was denied on the ground that he and his wife had excessive income and resources, herequested a fair hearing. Respondent Commissioner of Health (hereinafter respondent) affirmedthe denial, but found that the wife's allotment of marital assets beyond Medicaid's reach must beincreased. Respondent remanded the application to the Montgomery County Department ofSocial Services to determine how much of petitioner's [*2]excessresources would be necessary to allow the wife to purchase a single premium immediate lifeannuity, and directed that petitioner's application be reexamined after any additional excessresources were purged (see 42 USC § 1396r-5 [d], [e] [2] [C]; Social Services Law§ 366-c [8]).
Petitioner then commenced this CPLR article 78 proceeding to challenge respondent'sdetermination and obtain an award of counsel fees. Supreme Court granted the petition andawarded counsel fees, finding that respondent had departed without explanation from priorprecedent ruling that a community spouse could not be directed to purchase an annuity (seeMatter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 520 [1985]). Respondentappealed, arguing solely that petitioner was not entitled to the counsel fees awarded by SupremeCourt pursuant to 42 USC §§ 1983 and 1988. The Court of Appeals ultimatelyconcluded that counsel fees could be awarded only if petitioner had succeeded on his federalstatutory claim (11 NY3d 179, 190-192 [2008]). Because Supreme Court had resolved the matteron state law grounds without explicitly addressing petitioner's federal claim, the Court ofAppeals remitted for a determination of the federal claim "for the purpose of awarding attorneyfees" (id. at 191 [internal quotation marks and citation omitted]). Upon remittal, SupremeCourt found the claim to have merit and, in a separate judgment, awarded over $100,000 incounsel fees and costs to petitioner. Respondent appeals from both judgments, while petitionercross-appeals only from the judgment specifying the amount of the fee award.[FN1][*3]
Initially, we reject petitioner's contention that our reviewof the issue raised on this appeal is barred by the law of the case doctrine. Neither this Court northe Court of Appeals has addressed the issue of whether respondent's determination violatedfederal law. Indeed, due to Supreme Court's failure to explicitly address the issue, the Court ofAppeals remitted the matter for a determination regarding whether "respondent's calculation of[petitioner's] wife's 'community spouse resource allowance' (CSRA) violated a provision of thefederal Medicaid Act" (11 NY3d at 183). While Supreme Court has now expressly ruled thatsuch a violation had occurred, the merits of that claim were not resolved upon the initial appeal,and we are not precluded by the law of the case doctrine from addressing them now (seePeople v Evans, 94 NY2d 499, 503 n 3 [2000]; Grullon v City of New York, 297AD2d 261, 265 [2002]).[FN2]
Turning to the merits, respondent argues that the use of the "annuity method" to increase thecommunity spouse resource allowance for petitioner's wife was permitted under federal law.Medicaid "pays for medical care for those unable to afford it, including nursing home care formedically needy older people who become eligible by incurring medical expenses that reducetheir monthly income and assets below prescribed levels" (Matter of Tomeck, 8 NY3d 724, 728 [2007]). Although anapplicant residing in a nursing home must "spend down" income and resources to the point wherehe or she is financially eligible for benefits, Congress also adopted provisions "designed to[e]nsure that the community spouse"—i.e., the spouse who continues to reside in thecommunity—"retains necessary, but not excessive, income and assets, which do not needto be depleted" (id.; see Wisconsin Dept. of Health & Family Servs. v Blumer,534 US 473, 480 [2002]; Matter ofBalzarini v Suffolk County Dept. of Social Servs., 16 NY3d 135, 141 [2011]). Underthose provisions, petitioner's wife was entitled to a minimum monthly maintenance needsallowance, "an amount deemed sufficient for [her] to live at a modest level after [petitionerbecame] eligible for Medicaid" (Matter of Tomeck, 8 NY3d at 728; see 42 USC§ 1396r-5 [d] [3]; Social Services Law § 366-c [2] [h]). Similarly, she was entitledto retain a portion of the couple's jointly and separately owned assets, known as the communityspouse resource allowance (see 42 USC § 1396r-5 [f] [2]; Social Services Law§ 366-c [2] [d]; Matter of Tomeck, 8 NY3d at 729; Matter of Golf v New YorkState Dept. of Social Servs., 91 NY2d 656, 659-660 [1998]). Inasmuch as the wife's monthlyincome fell below the minimum monthly maintenance needs allowance, respondent was obligedto increase the community spouse resource allowance to an "amount adequate to provide such aminimum monthly maintenance needs allowance" (42 USC § 1396r-5 [e] [2] [C];see Social Services Law § 366-c [8] [c]).
Petitioner challenged respondent's use of the "annuity method" to determine the amount ofthat increase as violating 42 USC § 1396r-5 (e) (2) (C). The statute, however, "does not setout an 'arithmetical formula' for" determining an adequate figure (Johnson v Lodge, 673F Supp 2d 613, 617 [MD Tenn 2009]; see Harris v Department of Human Servs., 345 IllApp 3d 764, 767, 803 NE2d 1063, 1066 [2004]). Indeed, the statute's open-ended language doesnot dictate any particular methodology, and the states employ a variety of methods (seeWisconsin Dept. of Health & Family Servs. v Blumer, 534 US at 495; Matter of Golf vNew York State Dept. of Social Servs., 91 NY2d at 667-669; Frolik & Brown, Advising theElderly or Disabled Client[*4]¶ 14.03 [2] [c] [ii] [2d ed]).A number of states have elected to apply the annuity method, and that choice has been upheld(see e.g. Johnson v Lodge, 673 F Supp 2d at 617-621; Ford v Iowa Dept. of HumanServs., 500 NW2d 26, 30-32 [Iowa 1993]; Matter of Lynch v Commissioner of N.Y.State Dept. of Health, 18 Misc 3d 1113[A], 2008 NY Slip Op 50015[U], *4-6[2008]).[FN3]
In short, nothing in federal law prevented respondent from relying upon the annuity method.Inasmuch as petitioner's federal claim thus fails, he is not a prevailing party entitled to counselfees under 42 USC §§ 1983 and 1988 (see 11 NY3d at 190-192; Matterof Dvelis v New York State Dept. of Social Servs., 146 AD2d 875, 878 [1989], lvdenied 74 NY2d 608 [1989]).
Petitioner's challenges to the amount of the fee award are rendered academic in light of theforegoing.
Lahtinen, Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment enteredNovember 8, 2010 is modified, on the law, without costs, by reversing so much thereof asgranted that part of the petition alleging a violation of 42 USC §§ 1983 and 1988;petition dismissed to that extent; and, as so modified, affirmed. Ordered that the judgmententered March 25, 2011 is reversed, on the law, without costs, and application denied.
Footnote 1: Petitioner died shortly after theCourt of Appeals remitted this matter, and prior to the issuance of the judgments on appeal.Ordinarily the death of a party results in a stay of the proceedings and, absent substitution of aproper legal representative (see CPLR 1015, 1021), Supreme Court's judgments would bevoid, leaving this Court without jurisdiction to hear this appeal (see Thomas v Benedictine Hosp., 8AD3d 781, 782 [2004]; Anderson v Gilliland, 245 AD2d 654, 655 [1997]). Where,however, "a party's death 'does not affect the merits of a case . . . , there is no needfor strict adherence to the requirement that the proceedings be stayed pending substitution' "(Gushlaw v Roll, 290 AD2d 667, 669 [2002], quoting Bova v Vinciguerra, 139AD2d 797, 799 [1988]). We note that "[u]nlike other judicial relief, the attorney's fees allowedunder [42 USC] § 1988 are . . . uniquely separable from the cause of action tobe proved at trial" (White v New Hampshire Dept. of Employment Security, 455 US 445,452 [1982]). In light of respondent's continued active litigation of this proceeding followingpetitioner's death and the limited scope of the remittal by the Court of Appeals—which leftintact the resolution of the merits on state law grounds and rendered petitioner merely "a nominalparty" with respect to the remaining, separable issue—we conclude that any argument thatthis appeal is not properly before us has been waived (Caridi v Durst, 228 AD2d 396, 397[1996]; see Bauernfeind v Albany Med. Ctr. Hosp., 154 AD2d 754, 755 n 1 [1989]; cf. Matter of Sills v Fleet Natl. Bank,81 AD3d 1422, 1423-1424 [2011]; Griffin v Manning, 36 AD3d 530, 531 [2007]).
Footnote 2: Inasmuch as petitioner assertsonly that his federal law claim was previously resolved in this proceeding, neither resjudicata nor collateral estoppel—which bar relitigation of issues and claims decided inprior actions or proceedings—are applicable here (see People v Evans, 94NY2d at 502).
Footnote 3: Both Johnson andLynch rely upon guidance prepared by the Centers for Medicare and Medicaid Servicesnoting that states were entitled to use "any reasonable method for determining the amount ofresources necessary to generate adequate income" under 42 USC § 1396r-5 (e) (2) (C),including the annuity method. While this guidance postdates the determination at issue here, itaddressed amendments to 42 USC § 1396r-5 that did not alter section 1396r-5 (e) (2) (C)(see Deficit Reduction Act of 2005, Pub L 109-171, tit VI, § 6013 [a], 120 Stat 4,adding 42 USC § 1396r-5 [d] [6]).