Cisco v. Lavine

Decision Date02 March 1973
Citation341 N.Y.S.2d 719,72 Misc.2d 1087
PartiesApplication of Michelle CISCO et al., Petitioners, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. Abe LAVINE, as Commissioner of the New York State Department of Social Services, Respondent.
CourtNew York Supreme Court

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

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

BERTRAM HARNETT, Justice.

By memorandum decision dated January 22, 1973, this Court held that the New York State Department of Social Services had failed to render decisions to Social Services benefit applicants after fair hearings within the 60 day time period set by Federal and State Social Services regulations, and that the regulation language employed and the crucial interests of appealing applicants required that the stated time limitation be mandatory and not enlarged De facto by administrative backlog. Cisco v. Lavine, 72 Misc.2d 1009, 340 N.Y.S.2d 275. The State now moves to renew and reargue that decision, and for leave to file an answer.

The guiding principles here are that, reargument may be granted where the Court has overlooked or misapprehended some factual matter or legal authority, whereas renewal may lie if new evidentiary material is asserted that is pertinent to the decision already rendered. Marine Midland Bank v. National City Bank, 59 N.Y. 67, 73; Walsh v. New York State Liquor Auth., 45 Misc.2d 827, 257 N.Y.S.2d 971, revd. on other grounds, 23 A.D.2d 876, 259 N.Y.S.2d 491, affd. 16 N.Y.2d 781, 262 N.Y.S.2d 502, 209 N.E.2d 821. Neither application may be made 'simply because the unsuccessful counsel . . . would like to again argue the very questions (previously) decided'. Fosdick v. Town of Hempstead, 126 N.Y. 651, 27 N.E. 382. Both are addressed to the discretion of the Court and are sparingly granted. See, 2A Weinstein-Korn-Miller, New York Civil Practice, par. 2221.03.

A. Respondent has in Substance Set Forth an Answer

Respondent Commissioner of the New York State Department of Social Services first contends that he should be allowed to file a formal answer now that his initial dismissal arguments have been rejected. However, the Court's prior holding was prompted by respondent's answering affidavit which clearly raised both essential issues of regulation interpretation and legal effect of administrative overload. There are no different grounds asserted in this application to renew, only statistical detail is supplied to fill out the original contention of increased hearing demand and State efforts to cope with it. The existence of widespread delays in fair hearing determinations is not denied, indeed, it is asserted.

While CPLR 7804(f) and 404(a) provide that a court shall permit an answer to be filed after a motion to dismiss is denied, it is also true that respondent did not move formally for a dismissal as required by those sections, and, as the Court noted, respondent was in fact subject to default judgment pursuant to CPLR 7804(e). Cf. Matter of Posner v. Rockefeller, 33 A.D.2d 683, 305 N.Y.S.2d 582, affd. 25 N.Y.2d 720, 307 N.Y.S.2d 224, 255 N.E.2d 563; Matter of Sibarco Stations Inc. v. Risman, 34 A.D.2d 890, 311 N.Y.S.2d 761. Until now, respondent has made no request for an opportunity to file an answer.

Yet, the Court believes the interests of justice would be served by allowing the State to interpose and have considered the factual material asserted now, presumably which would form the basis of its proposed answer, although the Court has not been furnished with a copy of that pleading. A certain flexibility in pleading practice is allowed and even encouraged by the CPLR, where no interest is prejudiced. CPLR 103(c). Here, there are no disputed factual issues requiring an evidentiary hearing with strict pleading preliminaries to reveal where the disagreements and triable matters lie. Petitioners do not dispute the statistics now asserted. Rather, all parties agree that the questions presented are ones of law. For these purposes, the Court dispenses with the formal filing of an answer, deems the affidavits and exhibits submitted by the State as constituting an answer, and grants renewal of the State's opposition to the Article 78 petition in order that the new material might be duly considered.

B. Reargument Granted

The pending case of Nelson v. Sugarman, (S.D.N.Y., 71 Civ. 1719) was brought to the Court's attention in the prior application, but neither party here raised the Federal Court's as yet unreported memorandum decision in that case dated November 15, 1972. Since that decision is itself authority having a direct bearing on the issues presented here, contained the expressed views of the United States Department of Health, Education and Welfare (HEW) as Amicus curiae, and made findings with respect to current fair hearing delay in New York State, the Court will grant reargument in order to reassess this case in the light of Nelson.

Further, although the Court was previously mindful of the case of Duffy v. Wyman, 58 Misc.2d 649, 297 N.Y.S.2d 77, affd. 33 A.D.2d 923, 309 N.Y.S.2d 110, now asserted as controlling by the State, it did not then believe it determinative of this case, and now upon reargument will state explicitly the reasons why not.

C. Upon Renewal and Reargument

Except in one crucial respect, the Court adheres to its prior decision in this case.

1. The Sixty Day Period is Mandatory

In Nelson, the Court unequivocally rejected the State's contention, likewise urged here, that the HEW regulation, 45 CFR § 205.10(a)(11) 'is directory and not mandatory', Nelson v. Sugarman, (S.D.N.Y.1972, slip op. at 9, 20), and concluded that the 60 day rule was 'required' as a 'mandatory prescription'. In recognizing the State's recent efforts to meet increased hearing requests with a larger administrative staff, the Federal Court in no way found the required time period to be relaxed thereby but, in fact, held that the State failed to comply with 45 CFR § 205.10(a)(11), 'in a substantial number of fair hearing cases'. Furthermore, in Banner v. Smolenski, (No. 69--1053--G, D.Mass. Oct. 18, 1972), earlier, 315 F.Supp. 1076, 1081 (Mass.1970), the Court rejected the excuse of case backlog for delays in final fair hearing determinations past the 60 day period and enjoined the Massachusetts Department of Public Welfare from further violations, noting that administrative initiative and reorganization can be used to cut down on delay. Both Nelson, supra, and Banner, supra, reinforce the correctness of this Court's prior determination. No authority has been cited making a contrary interpretation of the Federal rule.

The case of Duffy v. Wyman, Supra, does not require a different result. That case was decided at the trial level back in 1968 before it had become firmly established that state-operated, federally-reimbursed grant-in-aid programs were procedurally governed by and must comply with Federal law. See, Almenares v. Wyman, 453 F.2d 1075 (2nd Cir. 1971), cert. den. 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972). Further, it came at a time when a sudden recent deluge of fair hearing requests was thought to render compliance with the 60 day period 'well-nigh impossible'. Noting that the State regulation had been adopted before the 'unprecedented upsurge in appeals occurred', the Court, we believe, meant to hold that, based on the figures and the newness of the situation, compliance would not be then compelled. This was simply affirmed without opinion.

Now, after four years, the regulation remains unchanged and the State is still exceeding the 60 day period in 'substantial' respects. Moreover, for over two years, New York has in fact had notice of the likely hearing surge resulting from recent Federal rule changes requiring aid pending fair hearing determinations in cases of aid reduction or discontinuances. See, Almenares v. Wyman, Supra.

Any basis for suspending compliance simply no longer fairly exists.

The statistical evidence submitted by the State, basically the same as presented in Nelson, is similarly not supportive of a different result on the law. The State is to be commended for its efforts to meet the increasing hearing demand with more hearing officers, secretarial staff and clerical workers, as both Judge Motley noted and this Court now observes. The case backlog has in fact been reduced. Yet, this itself is evidence that the task is indeed approachable, albeit difficult. 'The state department has therefore fully demonstrated its ability to comply with the 60-day rule.' Nelson v. Sugarman, Supra, slip op. at 20. The interpretation of the regulation period as mandatory does not confront the State with a directive impossible of compliance.

The State provides no breakdown of the presently backlogged cases, but, as this Court previously intimated, Cisco v. Lavine, Supra, and the Court in Nelson specifically found, Id. at 17--19, the built-in financial incentive of aid continuance in cases of discontinuance and reduction has worked to shorten the appeal period for those types of cases, and the bulk of hearing determinations now extending beyond the 60 day period are cases of people whose applications for assistance or increased assistance were denied. These are vulnerable families, no less deserving of procedural protection where need in fact exists, yet lacking the security of aid continuance. They are most dependent upon the 60 day period for fair treatment, and there is absolutely no showing of an improved picture for them, no indication that the State's reduction in delays, mostly reduction and discontinuance cases, has in substantial respect reduced the backlog and delay in hearing their grievances. Indeed, a more lax rule applied for timeliness of determination in appeals of application denials would raise grave...

To continue reading

Request your trial
19 cases
  • Norton v. Lavine
    • United States
    • United States State Supreme Court (New York)
    • 19 Abril 1973
    ...Matter of Cisco v. Lavine, 72 Misc.2d 1009, 340 N.Y.S.2d 275 (1973) (and cases cited therein), modified upon reargument 72 Misc.2d 1087, 341 N.Y.S.2d 719 (1973). The test in determining whether a proper class action exists is whether the wrongs complained of are individual to the different ......
  • Indiana Dept. of Public Welfare v. DeVoux, 2--573A123
    • United States
    • Court of Appeals of Indiana
    • 25 Julio 1974
    ...(1973), 33 Cal.App.3d 36, 108 Cal.Rptr. 796; Cisco v. Lavine (Sup.Ct.1973), 72 Misc.2d 1009, 340 N.Y.S.2d 275, modified, 72 Misc.2d 1087, 341 N.Y.S.2d 719. In considering a variance between the state and federal eligibility requirements, the United State Supreme Court, in Townsend v. Swank,......
  • Richards v. Lavine
    • United States
    • United States State Supreme Court (New York)
    • 3 Julio 1974
    ...N.Y.S.2d 805 at 810, 280 N.E.2d 640, 643; Mtr. of Cisco v. Lavine,72 Misc.2d 1009, 340 N.Y.S.2d 275, mod. upon rearg. 72 Misc.2d 1087, 341 N.Y.S.2d 719). While the issue of whether petitioners have the right to bring a class action is a troublesome one (See Moore v. Metropolitan Life Ins. C......
  • Barton v. Lavine
    • United States
    • New York Supreme Court Appellate Division
    • 18 Noviembre 1976
    ......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, . Page 418. 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 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT