Worthy v. Toia

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Social Services, dated January 21, 1977 and made after a statutory fair hearing, which affirmed a determination of the local agency which discontinued the vendor payments to petitioner Albert Worthy for home health aid services administered by his sister Lillie Freeman. Determination annulled, on the law, without costs or disbursements, and petition granted to the extent that respondents are directed to restore vendor payments for home health services administered by pe*905titioner Freeman to her brother, petitioner Worthy. We find that the State commissioner’s determination is not supported by substantial evidence. The record establishes that Albert Worthy has permanently resided with his sister, Lillie Freeman, since his illness in 1969. Between 1974 and 1976 Ms. Freeman received vendor payments for home health aid which she administered to her brother. Discontinuation of those payments pursuant to 18 NYCRR 505.14 (g) (1) (ii) and the transfer of such payments to a new provider from a private agency, was not justified by the facts. The health care required by Mr. Worthy necessitated the presence of his sister (see, generally, Matter of De Pasquale v Dumpson, 87 Mise 2d 731, affd 60 AD2d 631). Mollen, P. J., Hopkins, Titone and Hawkins, JJ., concur.