Young v. Shuart

• Decision Date: 04 October 1971
• Citation: 325 N.Y.S.2d 113,67 Misc.2d 689
• Parties: Alberta YOUNG and her four infant children, individually and on behalf of all other recipients of public assistance similarly situated, Petitioner. For a Judgment pursuant to Article 78 of the Civil Practice Law & Rules, v. James M. SHUART, as Commissioner of the Nassau County Department of Social Services, Respondents.
• Court: New York Supreme Court

Page 113

325 N.Y.S.2d 113

67 Misc.2d 689

Alberta YOUNG and her four infant children, individually and on behalf of all other recipients of public assistance similarly situated, Petitioner. For a Judgment pursuant to Article 78 of the Civil Practice Law & Rules, v. James M. SHUART, as Commissioner of the Nassau County Department of Social Services, Respondents.

Supreme Court, Special Term, Nassau County, Part I.

Oct. 4, 1971.

[67 Misc.2d 690] Leonard S. Clark, Westbury, for petitioner by Burr C. Hollister, Mineola, of counsel.

Joseph Jaspan, County Atty., by James N. Gallagher, Deputy County Atty., Mineola, for respondents.

MEMORANDUM

BERNARD S. MEYER, Justice.

This Article 78 proceeding raises the questions whether (1) the County Commissioner of Social Services has discretion as a matter of policy and without regard to the facts of the particular case to refuse a special grant to an aid to dependent children recipient who claims that she and the children are destitute because cash has been stolen from her and (2) whether the proceeding can be maintained as a class action. The court holds the answer to the first question to be negative and the answer to the second question to be affirmative.

The petition alleges that petitioner is the mother of four children, that she receives public assistance in the category of Aid to Dependent Children, that on July 31, 1971 she received a check issued by the Department of Social Services in the amount of $398.00 which she cashed at the A & P where she spent $3.00, putting the remaining $395.00 in an envelope in her pocketbook, that she went to the laundromat and then back to the A & P and when she sought to pay for the purchases then made could not find the envelope or the money, that she reported her loss to the Department of Social Services and the police, that she was told by the Department that nothing could be done, that its failure to act on petitioner's request results from its policy of refusing to give emergency aid or to duplicate stolen checks, that without the issuance of a duplicate grant of $395.00, petitioner and her children face exhaustion of their food supply and eviction from their rented home.

CPLR 7804(e) directs that 'The body or officer shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court. The respondent shall also serve and submit with the answer affidavits or other written proof showing such evidentiary facts as shall entitle him to a trial of any issue of fact.' Despite those explicit and mandatory provisions and despite the fact that Article 78 procedure 'is exactly analogous to summary judgment', Matter of Teperman v. Atcos Baths, Inc., 7 A.D.2d 854, 182 N.Y.S.2d 765; see Matter of Rotkiewicz v. Dept. of Mental Hygiene, 283 App.Div. 458, 461, 128 N.Y.S.2d 654, 656, affd. 307 N.Y. 847, 122 N.E.2d 742, respondent has contented himself with serving an answer denying some allegations, denying others on information and belief, and raising four affirmative defenses, but has filed neither transcript nor answering affidavit.

Though the petition raises the broader question whether there was in fact a loss or theft, it is evident from petitioner's brief and particularly from the arguments advanced in relation to the class action issue, that the question which petitioner seeks to have determined is the narrower one stated at the beginning of this decision:--whether respondent has discretion as a matter of policy and without regard to the facts to refuse a special grant. Respondent has denied the somewhat unartful allegation of that policy contained in paragraph 17 of the petition, but paragraph 7 of the answer supplies any omission in that regard for it expressly avers that 'the refusal to pay by this Department is pursuant to a general policy in effect since 1969, which is uniformly applied to the entire public assistance case-load.'

Limitation by petitioner's brief to the narrower question has important bearing on whether the proceeding may be maintained as a class action. So limited, the issue becomes not whether respondent has determined on substantial evidence that petitioner and her children are not destitute or that no loss or theft occurred, but whether respondent's refusal as a matter of policy to consider the facts is impermissible under governing statutes and regulations. While the first would be a situation in which the wrongs asserted are individual to the different persons involved and thus not properly the subject of a class action, Gaynor v. Rockefeller, 15 N.Y.2d 120, 256 N.Y.S.2d 584, 204 N.E.2d 627; Summers v. Wyman, 64 Misc.2d 67, 314 N.Y.S.2d 430, affd. 36 A.D.2d 795, 320 N.Y.S.2d 730, the second would be a breach of duty which adversely affects in the same way the interest of every grant recipient whose cash has been lost or stolen 'and, being a wrong done to all, it should be susceptible of correction by legal action taken for the benefit of all', Lichtyger v. Franchard Corp., 18 N.Y.2d 528, 537, 277 N.Y.S.2d 377, 384, 223 N.E.2d 869, 874. Furthermore, a judgment in favor of all members of the class (persons denied a special grant by reason of respondent's policy refusal to consider their requests on the facts) 'could not, of course, prejudice the interests of any members of the class', Lichtyger v. Franchard Corp., loc. cit. Supra, p. 537, 277 N.Y.S.2d p. 384, 223 N.E.2d p. 874, fn 2. While it is true, as respondent's brief notes, that Hall v. Coburn Corp. of Amer., 26 N.Y.2d 396, 402, 311 N.Y.S.2d 281, 284, 259 N.E.2d 720, 722, emphasized 'the closely associated relationships growing out of trust, partnership or joint venture, and ownership of corporate stock' that have existed in class actions sanctioned by the Court of Appeals, it is also true that CPLR 1005(a) is not limited to those situations alone and that the question whether respondent's flat policy determination is permissible 'is one of common or general interest of many persons' (i.e. those who have been, or may hereafter be, denied a special grant without regard to the facts).

The strongest arguments against sanctioning a class action in this case are (1) that Article 78 proceedings are intended to be summary in nature and should not, therefore, be encumbered with the additional policy considerations which the classification device involves, and (2) that in light of the doctrine of Stare decisis no benefit will be derived from a class action judgment in this case. There may be Article 78 proceedings in which, because of the urgency of the situation at hand and the difficulty of fairly protecting the interest of nonparty members of the class, a court may as a matter of discretion reject class treatment of the proceeding. Clearly, however, nothing in the CPLR precludes bringing such a proceeding as a class action. Indeed, CPLR 7804(a), 7802(d) and 103(b) when read together with CPLR 1005, mandate the contrary conclusion.

While 'stare decisis furnishes almost the same advantages as a class action', Weinstein, Revision of Procedure: Some Problems in Class Actions, 9 Buffalo L.R. 433, 446, there is an important difference: '* * * the Stare decisis doctrine is an elastic one allowing the litigant to challenge the soundness of an outstanding decision whereas, under the doctrine of Res judicata, the decision is binding even though it is plainly wrong', People ex rel. Watchtower Bible & Tract Soc. v. Haring, 286 App.Div. 676, 683, 146 N.Y.S.2d 151, 158. It is precisely this difference which impels petitioner's having brought this proceeding as a class action. Petitioner's supporting affidavit (paragraph 6) and brief (pp. 4a and 37) state that the problem is a continuing one and that respondent continues to litigate the issue despite decisions adverse to his policy. Respondent has not controverted those statements. A class determination will, unless reversed on appeal, bind respondent as to all members of the class and thus avoid multiple litigation of the issue common to all members of the class, see Harris v. Wyman, 60 Misc.2d 1076, 304 N.Y.S.2d 423. The fourth affirmative defense is, therefore, dismissed.

The first affirmative defense, which pleads petitioner's failure to exhaust her administrative remedies, fares no better. The petition and affidavits set forth that as a result of the loss of the $395.00 petitioner and her four young children lived on four boxes of grits and some butter from August 1 to August 15, that they received some canned goods and milk from the Long Island Council of Churches on August 16th which by September 1 were exhausted, that she managed to pay the August rent only by borrowing $140.00 and using the August 15th welfare check for rent, but had to repay the $140.00 loan, and therefore cannot meet the September rent and feed her family. Respondent offers nothing to contravene these allegations except a conclusory statement in his brief. Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 25 L.Ed.2d 287; Kaplan v. Nassau County Department of Social Services, 34 A.D.2d 575, 309 N.Y.S.2d 1020; Matter of Borders v. Nassau County Dept. of Social Services, 34 A.D.2d 805, 311 N.Y.S.2d 746; Summers v. Wyman, 64 Misc.2d 67, 314 N.Y.S.2d 430, affd. 36 A.D.2d 795, 320 N.Y.S.2d 730; Matter of Preston v. Barbaro, 61 Misc.2d 327, 305 N.Y.S.2d 627, affd. 34 A.D.2d 809, 311 N.Y.S.2d 997; Matter of Ross v. Barbaro, 61 Misc.2d 147, 304 N.Y.S.2d 941; Matter of Wildstein v. Barbaro, 61 Misc.2d 31, 304 N.Y.S.2d 531, all are authority for the proposition that under the circumstances of this case petitioner was not bound to exhaust her administrative remedies by seeking a fair hearing. Matter of Yakkey v. Shuart, 65 Misc.2d 859, 319 N.Y.S.2d 223, cited by respondent, while expressing some doubt concerning the scope of the Borders holding is, not to the contrary for the ultimate determination made in the Yakkey case (p. 865...