Cruz v. Doar

• Citation: 994 N.Y.S.2d 233,2013 N.Y. Slip Op. 23472,46 Misc.3d 499
• Parties: In the Matter of the Application of Jose CRUZ, Petitioner, v. Robert DOAR, as Commissioner of the New York City Human Resources Administration, Respondent.
• Decision Date: 12 November 2013
• Court: United States State Supreme Court (New York)

46 Misc.3d 499
994 N.Y.S.2d 233
2013 N.Y. Slip Op. 23472

In the Matter of the Application of Jose CRUZ, Petitioner
v.
Robert DOAR, as Commissioner of the New York City Human Resources Administration, Respondent.

Supreme Court, New York County, New York.

Nov. 12, 2013.

994 N.Y.S.2d 236

Sienna Fontaine Esq., Legal Services NYC, Bronx, for Petitioner.

Stephanie A. Feinberg, Special Assistant Corporation Counsel, New York City Human Resources Administration, New York, for Respondent.

Opinion

LUCY BILLINGS, J.

46 Misc.3d 502

The New York City Human Resources Administration (HRA) reduces or discontinues public assistance as a penalty when assistance recipients capable of work are charged with failing to comply with requirements that they train for, seek, and maintain employment. NY Soc. Serv. Law (SSL) §§ 335(3), 335–a(4), 335–b(5)(a), 336, 342 ; 18 N.Y.C.R.R. §§ 385.2(f), 385.6(a), 385.7(a), 385.9(a), 385.12. Recipients are entitled to appeal these penalties to the New York State Office of Temporary and Disability Assistance (OTDA), which affirms or reverses the penalty.

This proceeding seeks declaratory and injunctive relief under C.P.L.R. § 3001 and 42 U.S.C. § 1983 as well as C.P.L.R. § 7803(3). Petitioner maintains that respondent's requirement that petitioner appear for mandatory appointments that conflict with his known unsubsidized work schedule contravenes the aim of SSL § 331 to assist petitioner to achieve economic independence and is both in violation of law and arbitrary. Petitioner further claims that respondent has implemented a system known as autoposting that automatically issues Notices of Decision to reduce or discontinue a recipient's public assistance without first reviewing the case record in violation 18 N.Y.C.R.R. § 385–4.1 and constitutional due process.

I. FACTUAL BACKGROUND AT RESPONDENT'S ADMINISTRATIVE LEVEL

Petitioner, with his wife and three children, receives public assistance for their family. Petitioner works 40 hours per week, so when he was added to his wife's public assistance case in March 2011 HRA budgeted the family's public assistance to account for his full time employment. Petitioner is required to participate in public assistance work activities, including work assessment, employment planning, and qualifying unsubsidized employment. SSL §§ 335, 336(1)(a) ; 18 N.Y.C.R.R. §§ 385.2(a) and (f), 385.9(a). On April 18,

994 N.Y.S.2d 237

2011, petitioner submitted proof of his full time employment and notified HRA that he works Tuesdays through Saturdays, which prevents him from attending other mandatory work activities on those days. Respondent does not dispute that HRA approved petitioner's unsubsidized job, but denies that in conjunction with this approval HRA received his work schedule.

46 Misc.3d 503

Petitioner failed to attend his mandatory work activity appointment scheduled Friday, May 13, 2011, because he was working. He received HRA's Conciliation Notification requiring him to attend an appointment May 26, 2011, to discuss his nonattendance at the work activity appointment May 13, 2011. Petitioner could not appear for his conciliation appointment as it was scheduled on a Thursday when he also was working. Therefore his wife appeared to submit his work schedule and inform HRA of his good cause for missing his mandatory work activity appointment. The case worker accepted the offered documents, but required petitioner to appear at HRA's office the following week, a requirement with which he also could not comply, because the office was closed for a holiday on his day off from work.

Petitioner received a Notice of Decision dated June 2, 2011, informing him of respondent's intent to reduce petitioner's public assistance as a penalty for his noncompliance with the requirement to attend his work activity appointment May 13, 2011. On June 10, 2011, petitioner requested an administrative hearing to challenge respondent's determination to penalize him for noncompliance with a work activity requirement.

A few days later petitioner received a notice to attend another mandatory work activity appointment scheduled June 22, 2011, again a day he was scheduled to work. He and his attorney repeatedly contacted HRA via the telephone number respondent provided in the mandatory appointment notice, in an unsuccessful attempt to reschedule the appointment, as no one ever answered, and HRA's telephone system did not allow the caller to leave a message. His attorney also sent a letter on petitioner's behalf via facsimile and certified mail to respondent's subordinate official at the address provided in the notice. The letter explained the reason preventing petitioner's attendance at this and other appointments that conflicted with his work and asked to reschedule future appointments for Mondays.

Petitioner received another Conciliation Notification requiring him to appear for a conciliation regarding his nonattendance at the mandatory work appointment June 22, 2011. This conciliation was scheduled for July 7, 2011, a Thursday when again petitioner was scheduled to work. Again he and his attorney contacted HRA via several unsuccessful telephone calls that were not answered and did not allow the caller to leave a message, to reschedule the conciliation and request accommodation of petitioner's work schedule. His attorney sent another letter

46 Misc.3d 504

via facsimile and certified mail to respondent's subordinate, again explaining the reason preventing petitioner's attendance at this and other appointments, and requesting rescheduling to a Monday.

Respondent received, but neither replied to nor accommodated these requests to reschedule petitioner's appointments. Instead, petitioner received a Notice of Decision dated July 13, 2011, informing him of respondent's intent to reduce petitioner's public assistance as a penalty for his nonattendance at the mandatory work appointment June 22, 2011. Petitioner requested another administrative hearing to challenge this Notice of Decision.

While petitioner's two requests for administrative hearings were pending, petitioner was scheduled for another mandatory

994 N.Y.S.2d 238

work appointment on a day when he was unavailable due to his work. His nonattendance at this mandatory work appointment led to another required conciliation appointment on a day that conflicted with his work schedule. Respondent did not respond to any of petitioner's communications notifying respondent of petitioner's inability to attend these mandatory appointments due to his work or requesting respondent to reschedule them to Mondays when petitioner would be available. Once again respondent issued a Notice of Decision informing petitioner that his public assistance was to be reduced as a penalty for his noncompliance with work activity requirements.

At petitioner's administrative hearing regarding the first Notice of Decision, respondent voluntarily withdrew the notice, so petitioner was not penalized. After this hearing, again petitioner continually was scheduled for mandatory work activity appointments and then conciliation conferences, all on days when he could not attend because he was at work, followed by Notices of Decision to reduce his public assistance. At petitioner's second administrative hearing regarding two subsequent Notices of Decision, respondent again withdrew both these notices, so petitioner's public assistance was not reduced or discontinued.

Within nine months, petitioner was scheduled for six mandatory work activity appointments and six conciliation appointments, all of which he could not attend because they conflicted with his unsubsidized employment that respondent continually refused to accommodate, instead issuing Notices of Decision of the intent to penalize petitioner for his noncompliance. Before petitioner commenced this proceeding, respondent withdrew all these Notices of Decision. Since petitioner commenced this

46 Misc.3d 505

proceeding, however, another administrative hearing has been pending regarding still more Notices of Decision for his nonattendance at his mandatory work activity and conciliation appointments.

II. RELIEF SOUGHT

Petitioner seeks equitable relief declaring the following actions unlawful and enjoining them. (1) Respondent's repeated scheduling of public assistance recipients for mandatory appointments that conflict with the recipients' known work schedules and respondent's attempts to penalize recipients for noncompliance with a work requirement when they are employed full time are arbitrary and violate of SSL §§ 331 and 342.(2) Respondent's refusal to allow a family member or interested party to appear at conciliation appointments on behalf of public assistance recipients threatened with a penalty violates SSL § 341 and deprives them of due process. (3) Respondent's use of autoposting to issue Notices of Decision without investigating and reviewing the case record violates 18 N.Y.C.R.R. § 385–4.1 and deprives public assistance recipients of due process.

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