Barton v. Lavine

• Decision Date: 18 November 1976
• Citation: 389 N.Y.S.2d 416,54 A.D.2d 350
• Parties: In the Matter of Susan BARTON, on behalf of herself and all others similarly situated, et al., Appellants-Respondents, v. Abe LEVINE, as Commissioner of the New York State Department of Social Services, et al., Respondents-Appellants. In the Matter of Rosie Lee BURTON, Respondent, v. Abe LAVINE, as Commissioner of the New York State Department of Social Services, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 416

389 N.Y.S.2d 416

54 A.D.2d 350

In the Matter of Susan BARTON, on behalf of herself and all

others similarly situated, et al., Appellants-Respondents, v. Abe LEVINE, as Commissioner of the New York State Department

of Social Services, et al., Respondents-Appellants.

In the Matter of Rosie Lee BURTON, Respondent, v. Abe LAVINE, as Commissioner of the New York State Department

of Social Services, et al., Appellants.

Supreme Court, Appellate Division, Third Department.

Nov. 18, 1976.

Legal Aid Society of Albany, Inc., Albany, Greater Upstate Law Project, Monroe County Legal Assistance Corp., Rochester (Rene H. Reixach, Jr., Rochester, of counsel), for Susan Barton and others, appellants-respondents and Rosie Lee Burton, respondent.

Louis J. Lefkowitz, Atty. Gen. (Alan W. Rubenstein and Jean M. Coon, Albany, of counsel), for Abe Lavine and others, appellants.

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

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

HERLIHY, Justice.

Effective January 1, 1974 the former program of public assistance to needy persons in the category of Aid to the Aged, Blind and Disabled (AABD) was replaced by Title XVI of the Social Security Act entitled 'Supplemental Securi Income for the Aged, Blind and Disabled' (SSI) (Social Security Act, § 1601 Et seq., U.S.Code, tit. 42, § 1381 Et seq.). Section 303 of Public Law 92--603 accomplished the change from AABD to SSI and section 414(a), par. 24 of said public law (U.S.Code, tit. 42, § 602, subd. (a), par. (24)) provides in part:

(I)f (any) individual is receiving benefits under Title XVI, then, for the period for which such benefits are received, such individual shall not be regarded as a member of a family for purposes of determining the amount of the benefits of the family under this title and his income and resources shall not be counted as income and resources of a family under this title * * *.

By a letter of instruction dated December 30, 1973 the Department of Health, Education and Welfare (HEW) construed the new program and instructed the State that were a needy household included a Title XVI recipient, 'the need, income, resources and amount of assistance should be determined as though the SSI beneficiary was not present in the home'.

The appellant State Commissioner construed the changes in the Federal Statutes and the instructions from HEW as permitting the rental needs to be prorated where an SSI recipient was a member of the household which was receiving payments in the category of Aid to Families with Dependent Children (ADC) and, accordingly, the local authorities on and after January 1, 1974 would determine the need for shelter and prorate it as to any SSI recipients in the household. (See former 18 NYCRR 352.3(c) promulgated April 30, 1974.)*

Petitioner Barton is an SSI recipient and the aunt and legal custodian of Clint Young on whose behalf she receives payments pursuant to the ADC program. While it is not entirely clear from the record, it appears that the amount of the rent actually paid by Barton for herself and her ward is the sum of $110 and that the local officials pursuant to the instructions of the State Commissioner and former 18 NYCRR 352.3(c) reduced that by one-half to $55 as well as similarly reducing the amount for fuel. Petitioner Burton is also an SSI recipient receiving aid for her dependent son (ADC). Her shelter allowan was likewise reduced by one-half as she and her son were the sole occupants of her residence.

These cases have been treated together on appeal as they raise identical questions of law.

In both of these cases the Special Term has found that any cooperative budgeting or proration based upon the presence of an SSI recipient in the household is precluded by the Federal statutes and by the regulations of HEW. As found by Justice Hughes in the Barton decision herein:

The construction of a statute by the agency charged with its administration is entitled to great weight (see McKinney's Cons.Laws of N.Y., Statutes, § 129) and the court finds that HEW's instruction is controlling in the case at bar (cf. Matter of Cisco v. Lavine, 72 Misc.2d 1087, 1092 341 N.Y.S.2d 719, 725; Young v. Shuart, 67 Misc.2d 689, 695, 325 N.Y.S.2d 113, 120, affd. 39 A.D.2d 724, 331 N.Y.S.2d 962).

Upon these appeals, the State Commissioner does not directly contest the holding that a proration of shelter and fuel was contrary to law, but the local commissioner does insist that such a holding was erroneous. We find that Special Term properly held that SSI beneficiaries were not to be counted in determining the needs of an ADC beneficiary for shelter and fuel (see Matter of Barton v. Lavine, 38 N.Y.2d 785, 381 N.Y.S.2d 867, 345 N.E.2d 339; Matter of Schimmel v. Reed, 50 A.D.2d 1085, 377 N.Y.S.2d 313, affd. 40 N.Y.2d 887, 389 N.Y.S.2d 361, 357 N.E.2d 1016 (1976)). Furthermore, the State Commissioner in his brief points out that in a letter dated June 20, 1974 he was advised by the regional office of HEW that the proration was 'contrary to Federal policy' and in a letter from the same office of August 9, 1974 that 'the method of budgeting shelter costs in AFDC/SSI households fails to comply with the Federal requirements'. There is no merit to any suggestion that a proration of shelter and fuel costs was proper.

The appellant State Commissioner and the Local Commissioner contend that the court erred in directing that payments to the petitioners be made retroactive to January 1, 1974. The power of the court to order retroactive payments is well established (Matter of Schimmel v. Reed, supra; Matter of Uhrovick v. Lavine, 43 A.D.2d 481, 352 N.Y.S.2d 529, affd. 35 N.Y.2d 892, 364 N.Y.S.2d 890, 324 N.E.2d 360) and such a result is apparently mandated by Federal regulations (45 CFR 205.10(a)(13)). The contention that the State Commissioner acted in good faith in prorating benefits is not persuasive either as a question of fact or as a matter of law.

For the foregoing reasons the appeals of the State Commissioner and the Albany County Commissioner are rejected and it is found that Special Term properly granted relief to the petitioners.

The petitioner Barton contends that Special Term erred in refusing to grant class-action relief. Class action relief in proceedings such as the instant cases has recently been denied (Matter of Schimmel v. Reed, supra; Matter of Uhrovick v. Lavine, supra; Matter of Adkin v. Berger, 50 A.D.2d 459, 462, 378 N.Y.S.2d 135, 138).

The petitioner Barton additionally contends that the new class action statute, CPLR (Art. 9), effective September 1, 1975, should be applied even though these actions were commended prior to its effective date. In Matter of Shook v. Lavine, 49 A.D.2d 238, 243, 244, 374 N.Y.S.2d 187, 192, 193, the Fourth Department refused to apply the new CPLR provisions so as to permit a class action. In the present cases it is readily apparent that every member of the class had an administrative remedy available and we do not find that opening the proceedings to a class at the level of an article 78 proceeding would be appropriate. Furthermore, the statute is procedure in nature and unlike the original CPLR (CPLR 10003) there is no provision expressing an intent that it be applied retroactively to pending proceedings (Simonson v. International Bank, 14 N.Y.2d 281, 289, 251 N.Y.S.2d 433, 439, 200 N.E.2d 427, 431). Upon the present record we...