Preview
FILED: JEFFERSON COUNTY CLERK 01/23/2024 03:25 PM INDEX NO. EF2023-00004996
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/23/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF JEFFERSON
______________________________________________________________________
In the Matter of the Application of
LUCIANNE LAPIERRE, AGENT UNDER
POWER OF ATTORNEY FOR LORETTA
LANZIONE,
Petitioner,
VERIFIED ANSWER AND
MOTION TO TRANSFER
-against-
INDEX NO.: EF2023-000004996
NEW YORK STATE DEPARTMENT
OF HEALTH AND NEW YORK STATE
OFFICE OF TEMPORARY AND
DISABILITY SERVICES, Hon. William F. Ramseier
Respondents.
__________________________________________
ANSWER
ROBERT L. HERSHEY, ESQ., an attorney duly admitted to practice law in the State of
New York and an Assistant Attorney General of the State of New York, of counsel to Attorney
General LETITIA JAMES, hereby affirms that the following is true upon information and belief,
based upon documents from the file kept by the State University of New York At Oswego ("SUNY
Oswego") and communications with State University of New York (“SUNY”) personnel.
1. The Attorney General of the State of New York is the attorney for the Respondents.
This affirmation is made as a return pursuant to Civil Practice Law and Rules section 7804.
2. Respondents ADMIT allegations in paragraphs 4 and 5.
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3. Respondents DENY the allegations of Paragraphs 1, 2, 3, 6, 7, 8, 9, 11, 14, 15,
21, 22, 23, 24, 25, 26, 28, 29, 30, 31, and 35 for lack of knowledge or information,
respectfully referring the Court to the complete Return annexed hereto as the best
evidence thereof.
4. Respondents DENY all remaining allegations not otherwise addressed in the
preceding paragraphs insofar as they seek to characterize portions of the record and/or
case law, statutes, or regulations, and respectfully refers the Court to the complete Return
annexed hereto and the applicable statutory, regulatory and decisional law for a more
complete and accurate statement and as the best evidence thereof.
STATEMENT OF RELEVANT FACTS
5. Pursuant to §7803 of the CPLR, the following review of the relevant facts involved
in the petitioner's case is stated by Respondents:
09/14/17 Loretta Lanzione designates Lucianne Lapierre and Frances Ivey as her
designated agents. See Exhibit A - Lucianne Lapierre POA Documents
09/27/17 A Quitclaim Deed was executed between Loretta Lanzione and Giovanni
Lanzione for Parcels I, II, and IIII, “conveying all interests of Loretta
Lanzione all of the above-described premises, including, but not limited to,
her life estate therein, to Giovanni (John) Lanzione.” See Exhibit B -
Brief from Slye Law Office to ALJ #2
12/21/18 Loretta Lanzione is hospitalized. See Exhibit C – Petition, see also
NYSCEF #1, See Exhibit D - Fair Hearing Determination
12/27/18 Loretta Lanzione’s application to the Jefferson County Department of
Social Services for Medicaid, including Supplement A for individuals
seeking coverage for Nursing home care was received. See Exhibit E -
Fair Hearing Packet from ODTA, See Exhibit C – Petition with
Exhibits and Memo, See Exhibit F - Request for Fair Hearing, See
Exhibit D - Fair Hearing Determination
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01/10/19 Loretta Lanzione was transferred to Samaritan Village. See Exhibit C -
Petition with Exhibits and Memo, See Exhibit D - Fair Hearing
Determination
03/07/19 The Jefferson County Department of Social Services issued a Notice of
Acceptance for Medical Assistance with Limited Coverage, denying 1)
Services provided in a nursing home, including hospice and managed Long-
term care, or intermediate care facility; or 2) nursing home care provided in
a hospital, until 03/01/20 (15.04 months) based on their calculations of her
assets. See Exhibit F - Request for Fair Hearing, See Exhibit D - Fair
Hearing Determination
03/07/19 The Jefferson County Department of Social Services issued an Action
Taken on Your Application For the Medicare Buy-In Program (sic),
denying Loretta Lanzione for the Medicare Buy-in Program, effective
12/01/18, as her income exceeded eligible
standards. See Exhibit F - Request for Fair Hearing
04/22/19 Lucianne LaPierre, Ms. Lanzione’ Power of Attorney, signed the Notice,
requesting a fair hearing, to contest the 03/07/19 Decision. See Exhibit F -
Request for Fair Hearing
04/22/19 The request for a Fair Hearing to contest the denial of the
Medicare Buy-in Program was executed. See Exhibit F - Request for Fair
Hearing
09/05/19 The Fair Hearing was held in Albany, NY before ALJ Alice Callahan, See
Exhibit G – Lanzione Transcript 9–5-19
08/09/23 The Fair Hearing was held at the Appellant’s home before ALJ Elizabeth P.
Siegel See Exhibit H – Lanzione Transcript 8-9-23, See Exhibit I -
ODTA 8.23.23 Decision
08/23/23 The Decision and Order affirmed the Agency’s 03/07/19 determination that
the, “Appellant’s application for Medical Assistance (“Medicaid”) for
nursing facility Services with limited coverage was effective December 1,
2018, and that the Appellant transferred property on September 27, 2017
for uncompensated value was correct.” Also, that, “the Agency’s
determination that the Appellant is not eligible for nursing facility services
for a period of 15.04 months is not correct and is reversed.” See Exhibit I
- ODTA 8.23.23 Decision
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NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/23/2024
MOTION TO TRANSFER VENUE
4. The grounds for the Respondents’ actions have been fully set forth in the
determinations being challenged and the Record of Proceedings annexed hereto.
5. The Decision after Fair Hearing and the record demonstrate that the 2023 Fair
Hearing Order and Decision was based on sound legal reasoning supported by the facts and
evidence provided.
6. This proceeding challenges the Fair Hearing Decision and Order of the New
York State Department of Health dated August 23, 2023, which upheld the March 7, 2019
determination of the Jefferson County Department of Social Services. Because Petitioner raises a
question of substantial evidence, the entire proceeding must be transferred to the Appellate
Division, Fourth Department, pursuant to CPLR 7804(g). Substantial evidence is “the kind of
evidence on which responsible persons are accustomed to rely in serious affairs.” People ex rel.
Vega v. Smith, 66 N.Y.2d, 139 (1985). It is not “proof beyond any reasonable doubt.”
Insufficiency and plausibility of the evidence and that there are no legal issues for which
this Court Request for Fair Hearing find a disposition. See Petition (NYSCEF No. 1) at ¶¶
45, 46, 47, 48, 51, 53, 55, 56, 57, 58, and 59.
12. In the interest of judicial economy, the Respondents have not submitted a detailed
analysis of the merits of this proceeding. However, if the Court does not deem it appropriate to
transfer this proceeding to the Appellate Division, the Respondents respectfully requests a
reasonable period of time to submit a further written response on the merits.
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NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/23/2024
RECORD BEFORE THE AGENCY BELOW
13. The undersigned certifies that the following is the record of the matter under
consideration pursuant to CPLR 7804(e):
EXHIBITS
Exhibit Description
Exhibit A Lucianne Lapierre POA Documents
Exhibit B Brief from Slye Law Office to ALJ #2
Exhibit C Petition with Exhibits and Memo
Exhibit D Fair Hearing Determination
Exhibit E Fair Hearing Packet from ODTA
Exhibit F Request for Fair Hearing
Exhibit G Lanzione Transcript 9–5-19
Exhibit H Lanzione Transcript 8-9-23
Exhibit I ODTA 8.23.23 Decision
Exhibit J Brief from Slye Law Office to ALJ #1
Exhibit K Brief from Slye Law Office to ALJ #3
Exhibit L Agency Rebuttal for Fair Hearing
Exhibit M BSK Request for Record
Exhibit N BSK Request for Transcript
Exhibit O Letter about Incapacity and POA
Exhibit P Letter About Incapacity from Samaritan Attorney to ODTA
Exhibit Q Letter from Smartian Attorney, re: No Response from ODTA
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Exhibit R Letter from Slye, re: Lanzione Incapacity Letter from
Caregiver
Exhibit S Request for Change of Representative to Robert Slye
Exhibit T Request for Lucianne Lapierre to be Added as Rep. and
Remove Robert Slye
Exhibit U Status Request from Samaritan Attorney to ODTA
Exhibit V Lanzione Hearing Recording 9–5-19
Exhibit W Lanzione Hearing Recording 8-9-23
WHEREFORE, Respondents respectfully requests that the proceeding be considered by
the Appellate Division, Fourth Department and that the Court find in favor of Respondents,
together with such other relief as may be right and just.
DATED: 23rd, January 2024
Watertown, New York
LETITIA JAMES
Attorney General of the State of New York
By: _____________________
ROBERT L. HERSHEY
Assistant Attorney General
Dulles State Office Building, 10th Fl.
317 Washington Street
Watertown, New York 13601
Telephone: (315) 523-6080
TO: Timothy N. McMahon, Esq.
Collin M. Carr, Esq.
Bond, Schoeneck & King, PLLC
One Lincoln Center
Syracuse, NY 13202-1355
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FILED: JEFFERSON COUNTY CLERK 01/23/2024 03:25 PM INDEX NO. EF2023-00004996
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/23/2024
VERIFICATION
STATE OF NEW YORK )
COUNTY OF JEFFERSON ) ss:
ROBERT HERSHEY, being duly sworn, deposes and says:
1. I am an Assistant Attorney General of the Watertown Regional Office of the
Honorable Letitia James, Attorney General of the State of New York, the attorney for the
Respondents herein.
2. I have read the foregoing Answer and Return and upon information and belief, the
sources of which are the documents provided by the New York State Department of Health and
New York Office of Temporary and Disability Assistance, annexed hereto, I believe to be true.
3. This verification is made by me because I have access to the files of the New
York State Department of Health and New York Office of Temporary and Disability Assistance
which contain statements, records and documents constituting the basis for the information
needed to prepare the Answer and Return.
Dated: January 23, 2024
Watertown, New York 13601
________________________________
ROBERT L. HERSHEY
Assistant Attorney General
I affirm this 23rd day of January, 2024, under the penalties of perjury under the
laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I
understand that this document may be filed in an action or proceeding in a court of law.
________________________________
ROBERT L. HERSHEY
Assistant Attorney General
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Preview
FILED: JEFFERSON COUNTY CLERK 01/23/2024 03:25 PM INDEX NO. EF2023-00004996 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/23/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF JEFFERSON ______________________________________________________________________ In the Matter of the Application of LUCIANNE LAPIERRE, AGENT UNDER POWER OF ATTORNEY FOR LORETTA LANZIONE, Petitioner, VERIFIED ANSWER AND MOTION TO TRANSFER -against- INDEX NO.: EF2023-000004996 NEW YORK STATE DEPARTMENT OF HEALTH AND NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY SERVICES, Hon. William F. Ramseier Respondents. __________________________________________ ANSWER ROBERT L. HERSHEY, ESQ., an attorney duly admitted to practice law in the State of New York and an Assistant Attorney General of the State of New York, of counsel to Attorney General LETITIA JAMES, hereby affirms that the following is true upon information and belief, based upon documents from the file kept by the State University of New York At Oswego ("SUNY Oswego") and communications with State University of New York (“SUNY”) personnel. 1. The Attorney General of the State of New York is the attorney for the Respondents. This affirmation is made as a return pursuant to Civil Practice Law and Rules section 7804. 2. Respondents ADMIT allegations in paragraphs 4 and 5. 1 of 7 FILED: JEFFERSON COUNTY CLERK 01/23/2024 03:25 PM INDEX NO. EF2023-00004996 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/23/2024 3. Respondents DENY the allegations of Paragraphs 1, 2, 3, 6, 7, 8, 9, 11, 14, 15, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, and 35 for lack of knowledge or information, respectfully referring the Court to the complete Return annexed hereto as the best evidence thereof. 4. Respondents DENY all remaining allegations not otherwise addressed in the preceding paragraphs insofar as they seek to characterize portions of the record and/or case law, statutes, or regulations, and respectfully refers the Court to the complete Return annexed hereto and the applicable statutory, regulatory and decisional law for a more complete and accurate statement and as the best evidence thereof. STATEMENT OF RELEVANT FACTS 5. Pursuant to §7803 of the CPLR, the following review of the relevant facts involved in the petitioner's case is stated by Respondents: 09/14/17 Loretta Lanzione designates Lucianne Lapierre and Frances Ivey as her designated agents. See Exhibit A - Lucianne Lapierre POA Documents 09/27/17 A Quitclaim Deed was executed between Loretta Lanzione and Giovanni Lanzione for Parcels I, II, and IIII, “conveying all interests of Loretta Lanzione all of the above-described premises, including, but not limited to, her life estate therein, to Giovanni (John) Lanzione.” See Exhibit B - Brief from Slye Law Office to ALJ #2 12/21/18 Loretta Lanzione is hospitalized. See Exhibit C – Petition, see also NYSCEF #1, See Exhibit D - Fair Hearing Determination 12/27/18 Loretta Lanzione’s application to the Jefferson County Department of Social Services for Medicaid, including Supplement A for individuals seeking coverage for Nursing home care was received. See Exhibit E - Fair Hearing Packet from ODTA, See Exhibit C – Petition with Exhibits and Memo, See Exhibit F - Request for Fair Hearing, See Exhibit D - Fair Hearing Determination 2 of 7 FILED: JEFFERSON COUNTY CLERK 01/23/2024 03:25 PM INDEX NO. EF2023-00004996 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/23/2024 01/10/19 Loretta Lanzione was transferred to Samaritan Village. See Exhibit C - Petition with Exhibits and Memo, See Exhibit D - Fair Hearing Determination 03/07/19 The Jefferson County Department of Social Services issued a Notice of Acceptance for Medical Assistance with Limited Coverage, denying 1) Services provided in a nursing home, including hospice and managed Long- term care, or intermediate care facility; or 2) nursing home care provided in a hospital, until 03/01/20 (15.04 months) based on their calculations of her assets. See Exhibit F - Request for Fair Hearing, See Exhibit D - Fair Hearing Determination 03/07/19 The Jefferson County Department of Social Services issued an Action Taken on Your Application For the Medicare Buy-In Program (sic), denying Loretta Lanzione for the Medicare Buy-in Program, effective 12/01/18, as her income exceeded eligible standards. See Exhibit F - Request for Fair Hearing 04/22/19 Lucianne LaPierre, Ms. Lanzione’ Power of Attorney, signed the Notice, requesting a fair hearing, to contest the 03/07/19 Decision. See Exhibit F - Request for Fair Hearing 04/22/19 The request for a Fair Hearing to contest the denial of the Medicare Buy-in Program was executed. See Exhibit F - Request for Fair Hearing 09/05/19 The Fair Hearing was held in Albany, NY before ALJ Alice Callahan, See Exhibit G – Lanzione Transcript 9–5-19 08/09/23 The Fair Hearing was held at the Appellant’s home before ALJ Elizabeth P. Siegel See Exhibit H – Lanzione Transcript 8-9-23, See Exhibit I - ODTA 8.23.23 Decision 08/23/23 The Decision and Order affirmed the Agency’s 03/07/19 determination that the, “Appellant’s application for Medical Assistance (“Medicaid”) for nursing facility Services with limited coverage was effective December 1, 2018, and that the Appellant transferred property on September 27, 2017 for uncompensated value was correct.” Also, that, “the Agency’s determination that the Appellant is not eligible for nursing facility services for a period of 15.04 months is not correct and is reversed.” See Exhibit I - ODTA 8.23.23 Decision 3 of 7 FILED: JEFFERSON COUNTY CLERK 01/23/2024 03:25 PM INDEX NO. EF2023-00004996 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/23/2024 MOTION TO TRANSFER VENUE 4. The grounds for the Respondents’ actions have been fully set forth in the determinations being challenged and the Record of Proceedings annexed hereto. 5. The Decision after Fair Hearing and the record demonstrate that the 2023 Fair Hearing Order and Decision was based on sound legal reasoning supported by the facts and evidence provided. 6. This proceeding challenges the Fair Hearing Decision and Order of the New York State Department of Health dated August 23, 2023, which upheld the March 7, 2019 determination of the Jefferson County Department of Social Services. Because Petitioner raises a question of substantial evidence, the entire proceeding must be transferred to the Appellate Division, Fourth Department, pursuant to CPLR 7804(g). Substantial evidence is “the kind of evidence on which responsible persons are accustomed to rely in serious affairs.” People ex rel. Vega v. Smith, 66 N.Y.2d, 139 (1985). It is not “proof beyond any reasonable doubt.” Insufficiency and plausibility of the evidence and that there are no legal issues for which this Court Request for Fair Hearing find a disposition. See Petition (NYSCEF No. 1) at ¶¶ 45, 46, 47, 48, 51, 53, 55, 56, 57, 58, and 59. 12. In the interest of judicial economy, the Respondents have not submitted a detailed analysis of the merits of this proceeding. However, if the Court does not deem it appropriate to transfer this proceeding to the Appellate Division, the Respondents respectfully requests a reasonable period of time to submit a further written response on the merits. 4 of 7 FILED: JEFFERSON COUNTY CLERK 01/23/2024 03:25 PM INDEX NO. EF2023-00004996 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/23/2024 RECORD BEFORE THE AGENCY BELOW 13. The undersigned certifies that the following is the record of the matter under consideration pursuant to CPLR 7804(e): EXHIBITS Exhibit Description Exhibit A Lucianne Lapierre POA Documents Exhibit B Brief from Slye Law Office to ALJ #2 Exhibit C Petition with Exhibits and Memo Exhibit D Fair Hearing Determination Exhibit E Fair Hearing Packet from ODTA Exhibit F Request for Fair Hearing Exhibit G Lanzione Transcript 9–5-19 Exhibit H Lanzione Transcript 8-9-23 Exhibit I ODTA 8.23.23 Decision Exhibit J Brief from Slye Law Office to ALJ #1 Exhibit K Brief from Slye Law Office to ALJ #3 Exhibit L Agency Rebuttal for Fair Hearing Exhibit M BSK Request for Record Exhibit N BSK Request for Transcript Exhibit O Letter about Incapacity and POA Exhibit P Letter About Incapacity from Samaritan Attorney to ODTA Exhibit Q Letter from Smartian Attorney, re: No Response from ODTA 5 of 7 FILED: JEFFERSON COUNTY CLERK 01/23/2024 03:25 PM INDEX NO. EF2023-00004996 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/23/2024 Exhibit R Letter from Slye, re: Lanzione Incapacity Letter from Caregiver Exhibit S Request for Change of Representative to Robert Slye Exhibit T Request for Lucianne Lapierre to be Added as Rep. and Remove Robert Slye Exhibit U Status Request from Samaritan Attorney to ODTA Exhibit V Lanzione Hearing Recording 9–5-19 Exhibit W Lanzione Hearing Recording 8-9-23 WHEREFORE, Respondents respectfully requests that the proceeding be considered by the Appellate Division, Fourth Department and that the Court find in favor of Respondents, together with such other relief as may be right and just. DATED: 23rd, January 2024 Watertown, New York LETITIA JAMES Attorney General of the State of New York By: _____________________ ROBERT L. HERSHEY Assistant Attorney General Dulles State Office Building, 10th Fl. 317 Washington Street Watertown, New York 13601 Telephone: (315) 523-6080 TO: Timothy N. McMahon, Esq. Collin M. Carr, Esq. Bond, Schoeneck & King, PLLC One Lincoln Center Syracuse, NY 13202-1355 6 of 7 FILED: JEFFERSON COUNTY CLERK 01/23/2024 03:25 PM INDEX NO. EF2023-00004996 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/23/2024 VERIFICATION STATE OF NEW YORK ) COUNTY OF JEFFERSON ) ss: ROBERT HERSHEY, being duly sworn, deposes and says: 1. I am an Assistant Attorney General of the Watertown Regional Office of the Honorable Letitia James, Attorney General of the State of New York, the attorney for the Respondents herein. 2. I have read the foregoing Answer and Return and upon information and belief, the sources of which are the documents provided by the New York State Department of Health and New York Office of Temporary and Disability Assistance, annexed hereto, I believe to be true. 3. This verification is made by me because I have access to the files of the New York State Department of Health and New York Office of Temporary and Disability Assistance which contain statements, records and documents constituting the basis for the information needed to prepare the Answer and Return. Dated: January 23, 2024 Watertown, New York 13601 ________________________________ ROBERT L. HERSHEY Assistant Attorney General I affirm this 23rd day of January, 2024, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. ________________________________ ROBERT L. HERSHEY Assistant Attorney General 7 of 7