Hamler v. D'Elia
| Citation | 467 N.Y.S.2d 242,97 A.D.2d 411 |
| Parties | In the Matter of Edna HAMLER, Petitioner v. Joseph D'ELIA, as Commissioner of the Nassau County Department of Social Services, et al., Respondents. |
| Decision Date | 03 October 1983 |
| Court | New York Supreme Court — Appellate Division |
Leonard S. Clark, Nassau/Suffolk Law Services Committee, Inc., Hempstead (Vicki Lens, Huntington, of counsel), for petitioner.
Edward G. McCabe, County Atty., Mineola, (Robert O. Boyhan, Mineola, of counsel), for respondent D'Elia.
Robert Abrams, Atty. Gen., New York City, , for respondent Blum.
Before WEINSTEIN, J.P., and BRACKEN, RUBIN and BOYERS, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to CPLR article 78 to, inter alia, review a determination of the respondent State Commissioner of Social Services, dated April 1, 1981, and made after a statutory fair hearing, insofar as it affirmed a determination of the local agency to reduce petitioner's monthly grant for Aid to Dependent Children in order to recover a utility direct payment made on her behalf.
Determination confirmed insofar as reviewed and proceeding dismissed on the merits, without costs or disbursements.
Petitioner receives a regularly recurring grant of public assistance for her six minor children and receives a grant of Supplemental Security Income for herself. Her utility service of gas and electricity is provided by the Long Island Lighting Company (LILCO).
In 1977, petitioner was threatened with a shut-off of services for not paying a four-month arrears bill. Pursuant to 18 NYCRR 352.7(g)(5) the Nassau County Department of Social Services paid the bill and recouped the payment from petitioner's ensuing grants. Thereafter, the agency paid petitioner's on-going utility bills directly to LILCO and deducted these amounts from petitioner's ensuing regular monthly grants pursuant to 18 NYCRR 352.29(e).
This arrangement was in effect in 1980 when the agency paid a bill of $1,144.03 to LILCO for the months of August through November, 1980. The bill was unusually high because LILCO included an adjustment for estimated bills from May, 1979 through part of October, 1980. On January 12, 1981 the agency issued a notice to petitioner stating that it had paid the bills and that it was going to recoup the payment at a rate of 10% of her total needs per month ($69.20) pursuant to 18 NYCRR 352.7.
At the hearing requested by petitioner, the agency's representative stated that the agency's authority for recovering its payments to LILCO was actually 18 NYCRR 352.29, but since that regulation would allow the agency to deduct the payment in one lump sum, the agency opted to use the recoupment regulation to create less of a hardship for petitioner. Petitioner's representative acknowledged that 18 NYCRR 352.29(e) authorized the deduction, but disputed the amount. During the hearing, the agency admitted that it did not break down the gas used for cooking.
On April 1, 1980, the State Commissioner affirmed the determination of the agency to deduct for direct payments made to LILCO under 18 NYCRR 352.29(e). However, the commissioner stated that the amount to be deducted was not correct. The agency was directed to redetermine the amount to be deducted after seeing if petitioner was eligible for an additional fuel allowance. It was also directed to give petitioner an opportunity to submit evidence to establish undue hardship. Petitioner initiated this proceeding to, inter alia, review the determination of the State Commissioner.
The agency's notice of intent to reduce petitioner's grant did not conform with the requirements of 45 CFR 205.10(a)(4)(i)(B) insofar as it failed to state "the specific regulation supporting [its] action" (see Matter of Regan v. D'Elia, 82 A.D.2d 890, 440 N.Y.S.2d 290; Matter of Foster v. D'Elia, 72 A.D.2d 813, 421 N.Y.S.2d 905). However, the citing of an incorrect regulation in the notice of intent is not fatal if there is no material variance between the regulations, and if the precise facts upon which the reduction is based are included in the notices (Matter of Hopkins v. Blum, 87 A.D.2d 613, 448 N.Y.S.2d 208, affd. 58 N.Y.2d 1011, 461 N.Y.S.2d 1013, 448 N.E.2d 798; Matter of Jackson v. Blum, 91 A.D.2d 663, 456 N.Y.S.2d 1000; Matter of Herring v. Blum, 68 A.D.2d 64, 416 N.Y.S.2d 624). In the case at bar, the difference between the two regulations dealt with the method of the agency's recovery, not with the agency's right to recover. The notice stated the precise facts of the case, the correct regulation was stated at the hearing and the petitioner's representative demonstrated familiarity with the correct regulation. Thus petitioner suffered no prejudice from the inadequate notice (Matter of White v. D'Elia, 80 A.D.2d 874, 436 N.Y.S.2d 786; cf. Matter of De Patto v. Weinberg, 75 A.D.2d 870, 428 N.Y.S.2d 39, app. dsmd. 51 N.Y.2d 770). Further, since peti...
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Williams v. D'Elia
...of Social Services Law § 131-s(3), and thus, that statute and its accompanying regulations are controlling (cf. Matter of Hamler v. D'Elia, 97 A.D.2d 411, 467 N.Y.S.2d 242; Matter of Bostic v. Blum, 93 A.D.2d 862, 461 N.Y.S.2d 367). We further note that the respondent D'Elia, as Commissione......
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Hairston v. D'Elia
... ... and the agency's decision to recoup the payments rather than deduct them directly, are without merit for the reasons stated in Matter of Hamler v. D'Elia, 97 A.D.2d 411, 467 N.Y.S.2d 242 [decided herewith]. However, the case at bar differs from Hamler on the issue of determining petitioner's ... ...