
    In the Matter of Davis Johnson, Petitioner, v Brian J. Wing, as Acting Commissioner of New York State Department of Social Services, Respondent.
    [654 NYS2d 902]
   Determination unanimously annulled on the law without costs and petition granted in accordance with the following Memorandum: Petitioner is a 49-year-old man who is completely wheelchair dependent. Petitioner established that the elevation of his legs and his frequent repositioning in his wheelchair are medically necessary to promote his circulation and prevent further incidents of decubitus. The tilt in space and elevating leg rests features of the wheelchair requested by petitioner allow petitioner to achieve the proper elevation of his legs and promote optimal circulation. Although petitioner has personal care aides assigned to assist him with the tasks of daily living who can perform those functions, the evidence is uncontroverted that petitioner is frequently left for prolonged periods of time without the services of a care aide. Thus, respondent’s determination that the wheelchair with the tilt in space and elevating leg rest features is not medically necessary is not supported by substantial evidence (see, Matter of Gartz v Wing, 236 AD2d 890; Matter of Dobson v Perales, 175 AD2d 628). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Mahoney, J.) Present—Green, J. P., Law-ton, Doerr, Balio and Fallon, JJ.  