Opinion
December 21, 1970
Proceeding under CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Commissioner of Social Services of the State of New York which affirmed the decision of the Albany County Department of Social Services discontinuing public assistance for petitioner. On January 31, 1968, Mary A. Buyce, petitioner's aunt, died leaving $5,895.68 in a joint account with her sister, Ella A. Champaign, who was petitioner's mother. On February 19, 1968, the mother withdrew the balance and opened a new joint account in her name and in her son's name, from which the mother on March 13, 1968 made two withdrawals, one for $1,000 and the other for $4,895.68. On the same day as withdrawn, the $4,895.68 was deposited in an account entitled "Mrs. Ella A. Champaign ITF Marion Pelletier." According to petitioner, the $1,000 was deposited in an account for the son and, on April 3, 1968, $1,000 was withdrawn from the ITF account and deposited in a joint account in the name of the mother and petitioner for the mother's use. On April 8, 1968 the mother withdrew the $3,895.68 balance and the cashier's check therefor was made payable to petitioner alone. This check was retained by petitioner until on or about May 28, 1968 when she indorsed it over to a bank in New Jersey and opened two accounts with a stock broker, each for $2,000 and each in her name as custodian for a grandson. One account was started with $2,000 from the check she indorsed and the other from the balance of the check and $104.32 in cash. In the fall of 1968, petitioner received from these accounts two dividend checks made payable to her, without restriction, which she cashed and then gave the proceeds to a daughter other than the mother of said grandsons. When the Albany County Department of Social Services discontinued petitioner's aid to dependent children assistance in April, 1969, on the ground that she had transferred certain of her funds into said accounts in order to qualify for public assistance and that said moneys were still available to her to meet her needs, petitioner appealed to respondent and, upon affirmance, this proceeding ensued. Petitioner contends that the funds were placed in the accounts with petitioner as custodian under the New York Uniform Gifts to Minors Act and that legal title vested in the grandsons. Rule 82.1 of the Rules of the New York State Board of Social Welfare requires that: "Public assistance and care shall be granted only so long, and in such form and amount, as is necessitated by the needs of the recipient in the light of his resources." ( 18 NYCRR 82.1.) This implements the statutory principle that public assistance be available only for those unable to maintain themselves (Social Services Law, § 131, subd. 1). Since substantial evidence supports the finding of respondent that the money was, from the time it was given to petitioner, available to meet her needs, his determination should not be disturbed (CPLR 7803; Matter of Sowa v. Looney, 23 N.Y.2d 329, 335-336). The check, made payable to petitioner without limitation, was retained by her for a considerable period before she indorsed it and, when she established the accounts, she inquired of the broker as to how she could close the accounts out and get the money back, thus indicating that petitioner accepted and held the funds outright and not as trustees. Once established, by cashing the dividend checks and giving the money to a daughter for the daughter's emergency, she treated the accounts as her own and not as the grandsons'. The establishment of an account between petitioner's mother and the son and then one in the name of the mother in trust for petitioner negate petitioner's claim that her mother and aunt wanted the money put away for petitioner's grandsons. To make a gift of money under the Uniform Gifts to Minors Act, the donor would pay or deliver it to a broker or financial institution (EPTL, 7-4.1; 9A Rohan, N Y Civ. Prac., p. 7-77) and there was substantial evidence here indicating that petitioner's mother gave the money to petitioner and did not pay or deliver it through the daughter to the broker. It was for respondent to pass upon the credibility of the witnesses ( Matter of Avon Bar Grill v. O'Connell, 301 N.Y. 150, 153). Determination confirmed, without costs. Reynolds, J.P., Greenblott, Cooke and Sweeney, JJ., concur; Staley, Jr., J., concurs in the result.