
    In the Matter of Justin Starkweather, an Infant, by Leslie Kelly, as Guardian, Petitioner, v Brian Wing, as Acting Commissioner of New York State Department of Social Services, Respondent.
    [662 NYS2d 658]
   Determination unanimously annulled on the law without costs and petition granted. Memorandum: Petitioner’s infant is a 14-year-old boy who is completely wheelchair dependent and without the strength to propel a manual wheelchair because of cerebral palsy, spastic quadriplegia and other ailments. He lives with his 60-year-old grandparents, who have a history of back problems, in a mobile home that has been renovated to accommodate his needs. He has no personal care aides and is totally reliant upon his grandparents when not at school. Petitioner presented medical proof establishing that a specially adapted power wheelchair is needed to increase the independence and functional ability of petitioner’s infant, especially in emergency situations, and to prevent the development of “learned helplessness”. Because respondent did not offer any contrary proof, the determination that a customized power wheelchair is not medically necessary is not supported by substantial evidence (see, Social Services Law § 365-a; Matter of Gartz v Wing, 236 AD2d 890; Matter of Dobson v Perales, 175 AD2d 628). We therefore annul the determination and grant the petition. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Flaherty, J.) Present—Pine, J. P., Lawton, Wisner, Callahan and Doerr, JJ.  