Adkin v. Berger

• Decision Date: 22 January 1976
• Citation: 378 N.Y.S.2d 135,50 A.D.2d 459
• Parties: In the Matter of Annie ADKIN, on behalf of herself and all others similarly situated, Appellants, v. Stephen BERGER, as Commissioner of the New York State Department of Social Services, et al., Respondents. In the Matter of Geraldine RAY et al., on behalf of herself and all others similarly situated, Appellants, v. Stephen BERGER, as Commissioner of the New York State Department of Social Services, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 135

378 N.Y.S.2d 135

50 A.D.2d 459

In the Matter of Annie ADKIN, on behalf of herself and all

others similarly situated, Appellants, v. Stephen BERGER, as Commissioner of the New York State

Department of Social Services, et al., Respondents.

In the Matter of Geraldine RAY et al., on behalf of herself

and all others similarly situated, Appellants, v. Stephen BERGER, as Commissioner of the New York State

Department of Social Services, et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Jan. 22, 1976.

Joel F. Spitzer, Legal Aid Society of Albany, Inc., Albany, for Annie Adkin and another, appellants.

Louis J. Lefkowitz, Atty. Gen. (Eileen A. Sullivan and Ruth Kessler Toch, Albany, of counsel), for Stephen Berger, respondent.

Robert Roche, County Atty. (Stanley G. Walker, Jr., Albany, of counsel), for John Fahey, respondent.

Before HERLIHY, P.J., and GREENBLOTT, KANE, KOREMAN and MAIN, JJ.

MAIN, Justice.

Instituted as class actions, these proceedings were brought to challenge the validity of two regulations of the Department of Social Services (18 NYCRR 352.7(g)(5) and 18 NYCRR 352.7(g)(7)). At all times relevant therein, these regulations provided for advance payments of public assistance to recipients thereof to prevent, respectively, utility shut-offs and evictions for non-payment of rent, and said advances on future grants were issued at the request of the recipients and upon the condition that they would be recovered by means of equal deductions from the recipients' subsequent regular assistance grants.

In the cases of the present petitioners, they sought and were granted fair hearings upon their being notified of the local county agency's intention to recover the advance payments which they had received pursuant to the subject regulations, and the State Commissioner of Social Services affirmed the actions of the local agency. As a result, petitioners commenced these proceedings wherein they seek, Inter alia, the invalidation of the regulations insofar as they authorize the recovery of the advance payments and the restoration to petitioners of the amounts by which their regular assistance grants have already been reduced in furtherance of this policy of recovery. At Special Term, however, their petitions were found to be without merit and dismissed, and these appeals ensued.

We agree with Special Term. The advances received by petitioners were to pay their regular monthly rent and utility bills which were long past due. Clearly, they were not non-recoverable emergency payments within the meaning and intent of section 350--j of the Social Services Law which:

* * * was enacted to apply to sudden and unexplained emergency events (see N.Y. State Legis. Annual, 1968, p. 255; see, also, Matter of Bates v. Wyman, 36 A.D.2d 854, 324 N.Y.S.2d 664; Matter of Borders v. Nassau County Dept. of Social Serv., 34 A.D.2d 805, 311 N.Y.S.2d 746; Matter of Ross v. Sipprell, 71 Misc.2d 677, 336 N.Y.S.2d 861, affd. 42 A.D.2d 691, 346 N.Y.S.2d 788), and not to remedy the anticipated demands created as the result of everyday life (Matter of Baumes v. Lavine, 44 A.D.2d 336, 337, 355 N.Y.S.2d 477, as quoted and affd. in 38 N.Y.2d 296, 379 N.Y.S.2d 760, 342 N.E.2d 543 (Dec. 4, 1975)).

Nor are they overpayments resulting from administrative errors of which the recipients very likely would have no knowledge and for which recovery would be unfair since the extra funds could easily be unwittingly dissipated. Rather, we are concerned here with recipients who, having already received assistance payments to cover their normal rent and utility costs, have sought and received additional sums for these same expenses, the original monies supplied therefor being unavailable. It is to be noted...