Brown v. Wyman
| Decision Date | 25 April 1969 |
| Parties | Application of Arlethia BROWN, Petitioner, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. George K. WYMAN, as Commissioner of the New York State Department of Social Services, Respondent. |
| Court | New York Supreme Court |
This is an Article 78 Proceeding to review a determination of the New York State Commissioner of Social Welfare.
The petitioner, Arlethia Brown, is on welfare and is a resident of the City of Syracuse. She has four children and her husband, James S. Brown, has disappeared.
She made application to the Onondaga County Department of Social Services for funds to pay the costs of publication to commence an action for an annulment against her husband. This application was denied and thereafter, on June 26, 1968, a Fair Hearing was held pursuant to section 353 of the Social Services Law reviewing the decision of the local agency. On October 17, 1968 the New York State Department of Social Services affirmed the decision of the Onondaga County Department of Social Services stating in its decision that a Social Services Agency has no authority to pay the costs of publication of a summons in an action for a divorce (sic) and also stating 'in addition, the applicant has an additional recourse in that she can proceed as a poor person under Article 11 of the CPLR'.
Petitioner's proceeding under Article 78 of the CPLR is brought to challenge this decision of the State Commissioner of Social Services on the grounds that the decision was arbitrary, capricious and affected by an error in law.
This proceeding may properly be passed upon in this Court. Issues raised under section 7803(4) shall be transferred to the Appellate Division; this Court may, however, itself pass on objections in point of law (CPLR 7804(g)). An issue raised under subdivision 3 of section 7803 shall be disposed of by the Court in which the proceeding is commenced (CPLR 7804(g)). Subdivision 3 of section 7803 raises a question as to whether a determination was affected by an error of law or was arbitrary or capricious. Accordingly, this question may properly be disposed of by this Court.
An analysis of section 352.5 of the Regulations of the State Department of Social Services reveals the items of 'special need' which shall be granted in the amount necessary whenever special circumstances are found to exist. The items of special need which are enumerated in that section are those expenses incidental to: (a) medical and dental care; (b) employment, work and job training; (c) securing employment; (d) education; (e) disability; (f) disabled veterans; (g) housekeeping and child care services; (h) laundry services; (i) telephone services; (j) household equipment, furniture, furnishings and supplies; (k) storage charges; (l) rubbish disposal; (m) household moving expenses; (n) payment for services and supplies already received; (o) insurance premiums; (p) transportation; (q) summer camps. The final category (r) provides for 'other'. A local agency which decides to make allowance for any verified special needs shall record such items and the circumstances (18 NYCRR § 352.5).
It is this category labeled 'other' that petitioner believes qualifies her to receive an allotment for which to pay the costs of publishing her summons in a proposed annulment action. It should be noted that all of the other subdivisions (Reg. Bd. of Soc. Welf. § 352.5(a)--(q)) are those which cover the basic necessities of life. Plainly, subdivision 'r' of this same section refers to 'other' similar basic necessities not catalogued in the proceeding subdivisions. Petitioner's request in this case for publication costs in a legal action does not, in this Court's opinion, fall within the broad outline of those needs considered basic necessities of life. No authority could be found which grants the Social Services Agency power to pay these costs. Further, the local Social Services Agency's personnel is not equipped to make a determination as to the merits and advisability of such a contemplated legal action.
Moreover, this Court has concluded that petitioner is entitled to apply for permission to prosecute her action as a poor person under Article 11 of the CPLR. * This determination was made for the following reasons:
(1) The expenditure of public funds, whether it be under the aegis of the Department of Social Services or by direction of a Justice of the Supreme Court to a County Treasurer is the same insofar as the taxpayers are concerned. However, an application similar to the instant one it made to the Courts under the provisions of the poor person's statute will give greater assurance to the public that any expenditure made of its funds will be founded on facts and circumstances which, under the applicable laws of this State, are meritorious.
(2) Under the former provisions of the Civil Practice Act a person qualified to sue as a poor person was entitled to have an attorney assigned to conduct an action for him (CPA § 196). A poor person was defined as being one who was not worth $300 in cash (CPA § 199). The Rules of Civil Practice formulated the procedure by which a person petitioned the Court to obtain leave to sue as a poor person (Rules 35, 36). These sections and rules of the Civil Practice Act were strictly construed as being in derogation of the common law so the benefits conferred were not extended beyond the exact language of the sections. (LaBarbera v. Hart and Crouse Co. Inc., 248 App.Div. 261, 262, 289 N.Y.S. 567 (Fourth Dept. 1936); People ex rel. King v. McNeill, 30 Misc.2d 566, 567, 219 N.Y.S.2d 118 (Sup.Ct. Dutchess Co. 1961)).
The successor provisions relating to poor persons contained in Article 11 of the CPLR provide that the Court in which an action is triable may grant permission to an individual to proceed as a poor person upon such party's filing an affidavit showing his income and property and 'that he is unable to pay the costs, fees and expenses necessary to prosecute * * * the action.' (§ 1101(a)). The CPLR further provides that a poor person shall not be liable for the payment of any costs or fees unless they are recovered by judgment or settlement had in his favor in which event the Court may direct him to pay out of the recovery all or part of the costs and fees (CPLR § 1102(d)).
Article 11 of the CPLR thus contains references to costs, fees and expenses necessary to prosecute the action (§§ 1101(a) & 1102(d)) which were not included in the applicable poor persons provision of the Civil Practice Act. Plainly, these references now...
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Kirk v. Kirk
... ... Wyman (397 U.S. 397, 408--409, fn. 12, 90 S.Ct. 1207, 1216, 25 L.Ed.2d 442) 'While New York purports to have paid its full standard, it would thus appear ... , the appellant is entitled to a liberal not narrow construction of Article 11 to secure the privilege which it confers (CPLR 104; Matter of Brown v. Wyman, 59 Misc.2d 740, 742, 300 N.Y.S.2d 254, 256) and need not be absolutely destitute to enjoy the benefit of a poor person statute (cf. Adkins ... ...