Chamizo v.

• Decision Date: 01 May 2014
• Docket Number: Index No. 401773/2011
• Citation: 2014 NY Slip Op 31341
• Parties: In the Matter of the Application of ARSENIO LEAL CHAMIZO, Petitioner v. NEW YORK CITY HUMAN RESOURCES, Respondent
• Court: New York Supreme Court

2014 NY Slip Op 31341

In the Matter of the Application of ARSENIO LEAL CHAMIZO, Petitioner
v.
NEW YORK CITY HUMAN RESOURCES, Respondent

Index No. 401773/2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

DATED: May 1, 2014

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Petitioner, neither represented nor fluent in English, commenced this proceeding on forms provided to him by a court clerk. Although the forms name the parties "Petitioner" and "Respondent," neither the Notice of Petition nor the Verified Petition refers to C.P.L.R. Article 4 or 78 or any other provision governing special proceedings. Petitioner's Verified Petition does, however, seek to reverse respondent's decision that petitioner was ineligible for Food Stamps, now the Supplemental Nutrition Assistance Program (SNAP), based on his alien status. C.P.L.R. § 7803. The only relief that the Verified Petition seeks is the retroactive Food Stamps that he was eligible for from September 2009 to May 2011.

II. FACTUAL RECORD

Attached to the Verified Petition is a document signed by a United States Immigration and Customs Enforcement Deportation Officer of the United States Department of Homeland Security,

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dated November 19, 2009, identifying petitioner by a photograph of him, his birthdate, his Social Security Number, and another identification number. The document "TO: Whom It May Concern" specifies petitioner's alien status:

Mr. Leal-Chemazo, Arsenio, born . . . in Cuba was ordered deported from the United States . . . on August 12, 1987. Mr. Leal-Chemazo, Arsenio was released from custody on an Order of Supervision on December 6, 2005. Mr. Leal-Chemazo, Arsenio cannot be removed to Cuba at this time due to current conditions in his home country. Mr. Leal-Chemazo, Arsenio is currently reporting to Immigration and Customs Enforcement as required. . . . This is the second letter I have provided for Mr. Leal-Chemazo . . . .

Also attached to the Verified Petition is the Decision by the New York State Office of Temporary and Disability Assistance (OTDA) on petitioner's appeal from respondent's determination denying petitioner Food Stamps because he was an ineligible alien. Consistent with the history from the United States Department of Homeland Security, the decision found that petitioner was "under an order of deportation that has been withheld under the Immigration and Nationality Act." Decision After Fair Hearing at 2 (Nov. 15, 2010). Specifically, "he was granted Withholding of Removal" and as

a Cuban entrant is categorically a qualified alien and entitled to Food Stamp benefits . . . . Accordingly, the Agency's determination to discontinue the Appellant's Food Stamp benefits because he is an ineligible alien is reversed.

Id. at 3.

Consequently, the State OTDA ordered respondent to: "Issue to the Appellant Food Stamp benefits retroactive to August 7, 2009, if the Appellant is determined to be otherwise eligible

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therefor." Id. at 4. Nevertheless, according to another undisputed document attached to the Petition, respondent, despite having received the State OTDA's Decision, notified petitioner via a notice dated November 22, 2010, that; "Your case was reviewed. Currently you are not eligible for Food Stamps benefits due to your alien status. (. . . Order of Supervision dated 08.31.10)" Respondent's refusal to follow the State OTDA's Decision then prompted this proceeding.

After petitioner commenced this proceeding, respondent provided him Food Stamps for July 16, 2009, through May 31, 2011. Respondent then claimed that it provided petitioner ongoing Food Stamps from June 1, 2011, forward.

III. RESPONDENT'S MOTION TO DISMISS THE PETITION

Respondent has moved to dismiss the petition, on the grounds that respondent has provided petitioner all the relief sought in his Petition, and therefore it no longer states a claim for relief and is moot. C.P.L.R. §§ 3211(a)(2) and (7), 7803, 7804(f). In opposition, petitioner attests that during September 2009 through May 2011 he was diabetic and recovering from spinal surgery and thus in particular need of nourishment, of which he was deprived by respondent's denial of Food Stamps. He suffered mainourishment and, to feed himself, incurred travel expenses in seeking donations from churches, incurred debts from borrowing funds for food, and resorted to retrieving discarded food from trash cans. He explains that, when respondent restored the Food Stamps due him immediately after he commenced this proceeding, he

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realized that the prior denial was more than a mistake; it was intentional mistreatment. He now seeks $250,000 in damages for respondent's intentional and neglectful denial of his rights and his resulting physical, mental, and emotional mistreatment. He supports his vulnerable condition with medical evidence indicating that at least as of 2013 he suffered from many conditions that may be caused or exacerbated by poor nutrition: hypertension, hypercholesterolemia, xerosis cutis, hyperopia, hyperlipidemia, obesity, and depressive disorder, in addition to diabetes and post-lumbar surgery syndrome.

Moreover, after respondent restored petitioner's Food Stamps through May 2011, respondent once again denied petitioner Food Stamps for four more months, September through December 2011, without explanation: a suspension of benefits that respondent finally explained and remedied only in January 2014, upon petitioner's continued complaint. To petitioner, this further denial was but further indication of respondent's intentional and neglectful mistreatment and violation of his rights.

IV. PETITIONER'S POTENTIAL ENTITLEMENT TO DAMAGES

A. Incidental Damages in a Proceeding Pursuant to C.P.L.R. Article 78

Insofar as this proceeding may be considered pursuant to C.P.L.R. Article 78 and thus limited to damages that are incidental to the primary relief petitioner sought, the retroactive Food Stamps, C.P.L.R. § 7806, that limitation is but a product of a court clerk's forms supplied to a prospective litigant with limited fluency in English. Even in a proceeding

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pursuant to C.P.L.R. Article 78, however, incidental damages are recoverable if they are the "natural and proximate consequences, and not the remote consequences, of a wrongful act." ...