Cisco v. Lavine

• Court: New York Supreme Court
• Writing for the Court: BERTRAM HARNETT
• Citation: Cisco v. Lavine, 340 N.Y.S.2d 275, 72 Misc.2d 1009 (N.Y. Sup. Ct. 1973)
• Decision Date: 22 January 1973
• Parties: Application of Michelle CISCO et al., v. Abe LAVINE, as Commissioner of the New York State Department of Social Services, Respondent.

Page 275

340 N.Y.S.2d 275

72 Misc.2d 1009

Application of Michelle CISCO et al., v. Abe LAVINE, as Commissioner of the New York State Department of Social Services, Respondent.

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

Jan. 22, 1973.

Nassau County Law Services Committee, Inc. for petitioners; Leonard S. Clark, Hempstead, by Carl Jay Nathanson, Hempstead, of counsel.

Louis J. Lefkowitz, Atty. Gen., New York City, for respondent.

BERTRAM HARNETT, Justice.

There is no doubt that the Social Services departmental workload of this State is heavy. There is also no doubt that the statutes and regulations governing the administration of social services form part of the law of the land. And, finally, there is no doubt that both social service beneficiaries and social service administrators alike must obey that law.

This litany of familiar observation forms the backdrop of the case at hand. To most, the issue of government acting within a specified time limit on applications for social service benefits is not world-shaking in the scale of society's problem priorities. But to those intimately affected, it shakes their world. It is the stuff of simply sustaining life at its most elemental aspects, eating, shelter, clothing, some semblance of human dignity. And, too, it raises questions of reciprocal morality. If we find the regulators to be jaundiced to the governing law, can we not expect the infection to appear amidst those being regulated.

With these thoughts in mind, we turn to the facts before us.

A. The Facts and Positions

1. The Petitioners

The petitioning parents in this case applied for and were denied Aid to Families with Dependent Children (AFDC) public assistance in Nassau County at various times in 1972, and each appealed to the New York State Department of Social Services. Their appeals were heard without delay in 'fair hearings', but the State failed to make a decision in each instance well past the 60 day period set by State and Federal regulations. They now bring this Article 78 proceeding seeking relief on behalf of themselves and all who have requested, but not received, timely final administrative decisions, as a result of the State's interpreting the prescribed 60 day time limitation as merely advisory.

2. The State

The State has not submitted a verified answer stating 'pertinent and material facts showing the grounds of (its) action complained of', as required by CPLR 7804(d). Instead, it seeks to dismiss this proceeding on mootness grounds by submitting that the named petitioners have now been sent their fair hearing decisions, although over 80 days past the prescribed time limit. See, CPLR 7804(c).

The only document submitted by the State, a page and a quarter affirmation by an Assistant Attorney General, does acknowledge that the decisions were delayed past the 60 day deadline, does not deny the claimed practice of widespread similar delays, but contends that the large recent volume of fair hearings has prevented timely decision-making, and, in any event, the 60 day rule is 'directory rather than mandatory'.

B. Mootness

The Court must then determine whether, in view of the State's admission that such administrative delay is going on and is legally justifiable, the controversy presented is moot. The Court of Appeals has held:

'(A) matter, although settled as between the parties, will not be considered academic when the underlying questions are of general interest, substantial public importance and likely to arise with frequency. (cit. omit.)'. Matter of Gold v. Lomenzo, 29 N.Y.2d 468, 475--476, 329 N.Y.S.2d 805, 809, 810, 280 N.E.2d 640, 643--644.

Where 'the controversy is of a character which is likely to recur not only with respect to the parties before the court but with respect to others as well . . . the differences between the plaintiff and the defendant give rise to a 'justiciable controversy', for which a declaratory judgment would be an appropriate remedy (see CPLR 3001)'. East Meadow Community Concerts Assn. v. Board of Education, 18 N.Y.2d 129, 135, 272 N.Y.S.2d 341, 346, 219 N.E.2d 172, 175; see also, Matter of Bell v. Waterfront Comm., 20 N.Y.2d 54, 61, 281 N.Y.S.2d 753, 759, 228 N.E.2d 758, 762; Matter of Concord Realty Co. v. City of New York, 30 N.Y.2d 308, 312--313, 333 N.Y.S.2d 161--163, 284 N.E.2d 148--150.

The underlying controversy in this case is a recurring legal dispute with substantial public importance. The State itself recognizes the substantial number of decisions rendered past the time allowed, and the Court dockets themselves reflect repeated proceedings brought by families seeking to compel the State simply to render a decision after fair hearing. Numerous proceedings have been brought by individual recipients whose fair hearing decisions are long past due, some resulting in court decisions upholding the 60 day requirement and directing the rendering of a decision, see, e.g. Williams v. Wyman, Index No. 4171/70 (Nassau County Supreme Court memorandum decision dated May 27, 1970, Velsor, J.), others being withdrawn after filing when decisions are finally issued, however late, see, e.g. Mulgrav v. Lavine, Index No. 15604/72; Washington v. Lavine, Index No. 10062/72; Mickens v. Lavine, Index No. 7003/72 (all Nassau County Supreme Court). Yet, the problem continues. The recurring nature of the dispute, not only as to those named, but also as to others who may request further hearings in the future and again face such delays, is both logically apparent and publicly recorded.

Further, in terms of the public programs which form part of governing law, the importance of timely decisions resolving grievances of essentially marginal families can hardly be questioned. Society, as well as the families receiving assistance, has a substantial interest in speedy review, which is a safeguard against arbitrary local agency determinations and the concomitant resulting human deprivation.

C. Class Action Relief

The law in New York is now clear that an Article 78 proceeding may be treated in substance as an action for a declaratory judgment. CPLR 103(c); Matter of Kovarsky v. Housing Development Assn., 31 N.Y.2d 184, 192, 335 N.Y.S.2d 382, 388, 286 N.E.2d 882, 885; Matter of Young v. Shuart, 67 Misc.2d 689, 692, 325 N.Y.S.2d 113, 117, affd. 39 A.D.2d 724, 331 N.Y.S.2d 962. Whether the declaratory relief avails to more than the particular litigants petitioning is a more substantial issue.

The language of the class action statute, CPLR 1005(a), fits this case most appropriately. It provides:

'Where the question is one of a common or general interest of many persons or where the persons who might be made parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all'.

The language of CPLR 1005(a) is necessarily general, and must be interpolated to each case, and a balance of factors, including practicality, ultimately decide whether class relief is appropriate. The advantages of a single ruling with uniform application must be weighed against the enforcement aspects of a classwide directive.

Despite the theoretical effect of Stare decisis, it is apparent that continued individually limited litigation presenting this question, and even resolving it against the State on a per case basis, does not correct the underlying problem. The State can always concede each case is moot when it is ultimately cornered by simply affording the relief. Yet, the intervening time periods are often crucial to the needy applicants. Resolution of such an issue, once and for all, 'to avoid multiplicity of suits', is undoubtedly within the purposes of CPLR 1005. Kovarsky v. Brooklyn Union Gas Co., 279 N.Y. 304, 18 N.E.2d 287; Harris v. Wyman, 60 Misc.2d 1076, 1077, 304 N.Y.S.2d 423, 426. The delay in fair hearing decisions beyond 60 days because of the State's policy is '. . . a wrong done to all, (and) 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. There is more than 'separate wrongs to separate persons' here in the context of Hall v. Coburn Corp., 26 N.Y.2d 396, 311 N.Y.S.2d 281, 259 N.E.2d 720. The State's interpretation of the 60 day rule as nonbinding is the single wrong with a single widespread effect: late decisions for many recipients or applicants. If found invalid, it is no more valid a basis for delay in one case than the next.

Only persons whose delayed decisions are occasioned by the State's policy belong to the class, and would be affected by its invalidation. No apparent interests of recipients are prejudiced by class relief, since the rendering of punctual decisions should harm no class member. Further, no claim is made for adherence to the 60 day rule where the recipient/applicant requests a delay in the fair hearing, in which case, both State and Federal regulations waive the time limit.

It should be further noted that the relief requested does not require that assistance be issued to anyone, but only that the State adhere to its own review procedures.

The Court recognizes therefore the true expediency of class relief here, as has been done not infrequently in cases where public assistance recipients challenge uniform adverse policies. Examples are, Young v. Shuart,39 A.D.2d 724, 331 N.Y.S.2d 962 and Matter of Ross v. Sipprell, 71 Misc.2d 677, 336 N.Y.S.2d 861 (recipients challenging county social services uniform denial of emergency assistance); Matter of Murphy v. Wyman, 68 Misc.2d 894, 328 N.Y.S.2d 520 (State bi-weekly split rent policy attacked); Harris v. Wyman, Supra (Statewide residency requirement invalidated).

The pendency of a Federal lawsuit, Nelson v. Sugarman (SDNY 71 Civ. 1719), concerning general fair hearing procedures, presenting only incidentally the one issue squarely before this Court, is not a bar to such relief since there is...