Everson v. Toia

• Decision Date: 06 December 1976
• Court: New York Supreme Court
• Parties: Application of Mary Ann EVERSON, Individually and on behalf of her unborn child, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. Philip TOIA, as Commissioner of the Department of Social Services of the State of New York, and John L. Lascaris as Commissioner of the Department of Social Services of the County of Onondaga, Respondents.

Page 138

393 N.Y.S.2d 138

89 Misc.2d 999

Application of Mary Ann EVERSON, Individually and on behalf

of her unborn child, Petitioner, For a Judgment

Pursuant to Article 78 of the Civil

Practice Law and Rules v. Philip TOIA, as Commissioner of the Department of Social

Services of the State of New York, and John L. Lascaris as

Commissioner of the Department of Social Services of the

County of Onondaga, Respondents.

Supreme Court, Onondaga County.

Dec. 6, 1976.

Onondaga Neighborhood Legal Services, Inc., for petitioner; Maurie Heins, Syracuse, of counsel.

Louis J. Lefkowitz, Atty. Gen., for respondent Toia; Sidney L. Grossman, Asst. Atty. Gen., Syracuse, in charge.

Clifford La Barge, Asst. Welfare Atty., Syracuse, for respondent Lascaris, Department of Social Services.

STEWART F. HANCOCK, Jr., Justice:

MEMORANDUM

Respondents' motion to dismiss for failure to request a fair hearing within the 60-day period prescribed by Social Services Law § 135--a is granted. Samperi v. Kramer, 49 A.D.2d 979, 374 N.Y.S.2d 369 (3d Dept.); Matter of Bozeat v. Berger, 87 Misc.2d 366, 385 N.Y.S.2d 1007; Fingland v. Lavine, 390 N.Y.S.2d 353, (Sup.Ct., Monroe Co.), affd., 54 A.D.2d 1096, 389 N.Y.S.2d 560, (4th Dept.); Stillman v. Lavine, Sup.Ct., Tompkins Co., May 28, 1976 (unreported decision).

Petitioner's request for assistance for herself and her unborn child was denied on September 16, 1975. (Respondents' Ex. A, Notice of Denial). After the decision of the Appellate Division, Fourth Department, in Rankin v. Lavine, 50 A.D.2d 1091, 376 N.Y.S.2d 355, on December 17, 1975 petitioner on March 16, 1976 through her attorney requested by letter a 'budgetary' correction pursuant to 18 N.Y.C.R.R. § 352.31(e) which establishes a procedure for the correction of underpayments. On April 5, 1976 a request for a fair hearing was filed citing the respondents' failure to reply to the March 16, 1976 letter. The minutes of the fair hearing and the decision after fair hearing showed clearly that the hearing related not to the procedural correction of ministerial or mathematical errors in computing or paying amounts that had been established as due to petitioner from an existing award of public assistance, but rather to the initial denial of public assistance on September 16, 1975--i.e., the substantive question of whether petitioner should or should not have received additional benefits for her unborn child during her period of pregnancy. Assuming the denial of September 16, 1975 to be the 'action complained of' petitioner's request for a fair hearing would be time barred. Social Services Law § 135--a.

Petitioner contends however that her request for the correction of underpayments under 18 N.Y.C.R.R. § 352.31(e) on March 16, 1976 and respondent's failure to respond created a new 'action complained of' and that her fair hearing request of April 5, 1976 was, therefore, within the 60-day period and timely. In effect, petitioner seeks to avoid the operation of Social Services Law § 135--a by the device of resubmitting her initial application for assistance which was denied on September 16, 1976 as an ostensibly new application labelled a 'request for the correction of underpayments.' Also, it appears that petitioner chose not to proceed by filing a new application for assistance under 18 N.Y.C.R.R. § 352.7(g), which states that '(a)ssistance grants shall be made to meet only current needs.' Petitioner's Memorandum of Law at p. 5.

Petitioner would use what is obviously a regulation governing internal administrative procedures for the correction and handling of established or admitted underpayments as a means of reopening the underlying substantive issue (the denial of her initial application for assistance)--thus giving retroactive effect to Rankin v. Lavine, supra, by simply calling the denial an 'underpayment'. If this is considered proper procedure, then any time-barred application for public assistance may be saved from the operation of Social Services Law § 135--a by resubmitting it as a request for an underpayment correction under 18 N.Y.C.R.R. § 352.31(e). Furthermore, this would permit a claimant to circumvent 18 N.Y.C.R.R. § 352.7(g) and, in effect, apply for 'past' needs.

Although it seems that petitioner sought to avoid a plea of untimeliness at the hearing by...