Domine v. Schreck

• Citation: 44 A.D.2d 98,353 N.Y.S.2d 821
• Parties: Judy DOMINE et al., Respondents, v. Francis SCHRECK, as Commissioner of Albany County Department of Social Services, et al., Appellants. Betty GIPSON et al., Respondents, v. Francis SCHRECK, as Commissioner of Albany County Department of Social Services, et al., Appellants.
• Decision Date: 28 March 1974
• Court: New York Supreme Court Appellate Division

Page 821

353 N.Y.S.2d 821

44 A.D.2d 98

Judy DOMINE et al., Respondents, v. Francis SCHRECK, as Commissioner of Albany County Department

of Social Services, et al., Appellants.

Betty GIPSON et al., Respondents, v. Francis SCHRECK, as Commissioner of Albany County Department

of Social Services, et al., Appellants.

Supreme Court, Appellate Division, Third Department.

March 28, 1974.

Robert P. Roche, County Atty., Albany, (Robert Harris, Albany, of counsel) for Francis Schreck, appellant.

Louis J. Lefkowitz, Atty. Gen. (Eileen A. Sullivan and Ruth Kessler Toch, Albany, of counsel), for Abe Lavine, appellant.

Lawrence F. Klepper, Albany, for respondents, Legal Aid Society of Albany, Inc.

Before HERLIHY, P.J., and STALEY, SWEENEY, KANE and MAIN, JJ.

HERLIHY, Presiding Justice.

These are appeals from a judgment of the Supreme Court at Special Term, entered September 12, 1973 in Albany County.

At the time these proceedings were commenced, both petitioners were receiving public assistance from Albany County Department of Social Services in the category of aid to dependent children. Petitioner Domine alleges that she exhausted her funds with expenditures for food, household goods and shoes for her children some five days prior to the due date of her next regular check. She applied for emergency assistance pursuant to section 350--j of the Social Services Law. Her application was denied without an investigation or hearing. The denial was based on the grounds of ineligibility as expressed in Regulation 372.2(b) and (c) of the New York State Department of Social Services (18 NYCRR 372.2, subds. (b) and (c)). An article 78 proceeding was then commenced.

Petitioner Gipson alleged that the sum of $180, the balance of her public assistance check, was stolen. She applied for emergency assistance which was also denied, without investigation or a hearing, on the same grounds. She also commenced an article 78 proceeding.

Special Term consolidated these proceedings and determined that the action was properly maintainable as a class action on behalf of all recipients of public assistance who might be denied emergency assistance on the same grounds as petitioners. It further declared, among other things, that the provisions of Regulation 372.2(b) and (c) are null and void, and held that the interim court ordered assistance for petitioners is not subject to reimbursement. This appeal ensued.

The petitioners have failed to establish any basis for the broad judgment of Special Term and, accordingly, this is not properly a class action. The judgment entered would unreasonably interfere with and restrict the future policies of the State Commissioner of Social Services.

While the issues in this case are framed as being purely legal and concerned with the constitutionality of the provisions of paragraphs (b) and (c) of Regulation 372.2, the record reveals that any constitutional defects that arise from the application of the social legislation are a matter of arbitrariness.

Appellants argue on this appeal that Special Term failed to distinguish between 'emergency assistance' and 'duplicate assistance'. They contend in both instances that petitioners seek duplication of grants previously made, and that emergency assistance was not intended to duplicate such grants. They rely on subdivision 8 of section 153 of the Social Services Law proscribing State reimbursement for duplicate assistance and the Department of Social Services' Regulation 372(c) providing that emergency assistance shall not be provided when destitution is due to loss, theft or diversion of a grant already made.

In our present affluent society there is no necessity for people, acting in good faith, to go hungry and this is particularly so in regard to children. On the other side of the coin, when allocating public funds for indigents, there is no room for cheats, frauds, chiselers or other less dignified characterizations. Section 350--j of the Social Services Law provides that so long as Federal aid is available therefor, emergency assistance must be given to needy families with children where there is destitution, unless such destitution arose because the children or the relatives with whom they reside refuse without good cause to accept employment or training for employment. (See, also, U.S.Code, Tit. 42, § 606, subd. (e), par. (1).)

In the action of Gipson it was alleged that $180 of a public assistance grant was stolen.

In the action of Domine, the petition alleged that, after providing for the so-called necessities of life, she (petitioner) was 'without cash' and she and her children were destitute. The reason for the emergency on March 26 was due to the 'increased cost of food and * * * the current level of assistance (of) only 90% Of the minimum needs (as) determined to exist in 1969', the obviousness of which statement is--as applicable to 1974--self-evident. The practical problem was that from March 26 to April 1 the family was destitute.

In both cases, the County Commissioner, without benefit of an investigation or a hearing, denied emergency relief or any form of relief relying upon the regulations of the Department. The regulations in issue do not foreclose a hearing and as a result the County Commissioner made an arbitrary determination in both instances.

Although the distinction between 'emergency assistance' and 'duplicate assistance' is a valid distinction, sections 351.8 and 372.1 of the Regulations (18 NYCRR 351.8 and 372.1) should, on a proper showing, be read and interpreted from a common sense point of view so as to grant and apply temporary relief to prevent children from going hungry and to enable them to receive proper care during a brief interim pending an investigation and hearing, if necessary or requested. There are maximum safeguards in the law to punish those who unlawfully or otherwise are the recipients of relief to which they are not entitled. In sum, children of families who are to be recipients of public assistance should not be allowed to go hungry or otherwise suffer from a lack of the...