In the Matter of Graves v. Doar, 2007 NY Slip Op 33147(U) (N.Y. Sup. Ct. 10/3/2007)
| Decision Date | 03 October 2007 |
| Docket Number | Motion Seq. No.: 03.,Motion Seq. No.: 04.,Motion Seq. No.: 02.,10218/06. |
| Parties | IN THE MATTER OF THE APPLICATION OF SHEILA GRAVES, JOAN HILLER and FRANK RIZZUTO, on behalf of themselves and all others similarly situated, Petitioners-Plaintiffs, FRED KAMINTZKY, on behalf of himself and all others similarly situated, Proposed Petitioner-Plaintiff Intervenor, FOR A JUDGEMENT PURSUANT TO §3001 and ARTICLES 9, 78 and 86 of the C.P.L.R. and 42 U.S.C. § 1983, v. ROBERT DOAR, as Commissioner of the Office of the Temporary and Disability Assistance of the New York State Department of Family Assistance, and JOHN E. IMHOF, as Commissioner of the Nassau County Department of Social Services, Respondents-Defendants. |
| Court | New York Supreme Court |
In Motion Sequence #02 the Petitioners and the Proposed Intervenor Fred Kamintzky move for an Order pursuant to CPLR § 1013 and §7802 (d) to intervene in this proceeding as a Petitioner and for Class Certification pursuant to Articles 9 of the CPLR.
In Motion #03 the Petitioners move for Partial Summary Judgement on their fourth Cause of Action.
In Motion Sequence #04 the Attorney General of the State of New York moves for Summary Judgement dismissing the Petition against Respondent-Defendant Robert Doar.
For the purpose of this Decision the Petitioners-Plaintiffs will be referred to as "Petitioners" and the Respondent-Defendants will be referred to as "Respondents".
The background of this case is set forth in this Court's order dated December 19, 2006, which is incorporated herein.
Proposed intervenor Fred Kamintzky alleges that he resides in the same congregate care Level II group home as the three petitioners, and that he has been unfairly deprived of food stamp benefits under the Group Home Standardized Benefit Program ("GHSBP") in the same manner as petitioners. He contests the reduction of his monthly food stamp allotment from $86 to $39, and he seeks to join with petitioners in seeking injunctive and declaratory relief.
Respondents argue that Kamintzky's situation is very different from that of petitioners herein because he never challenged the determination that reduced his Food Stamps at a Fair Hearing. Respondents also claim that had Kamintzky filed his own Article 78 proceeding, it would be dismissed on limitations grounds.
Permissive intervention is governed by CPLR § 1013 and 7802(d). The former permits intervention when the proposed intervenor's claim and the main action have a common question of law or fact, provided that the intervention will not unduly delay the determination or prejudice the rights of any party [Matter of Village of Spring Valley v. Village of Spring Valley Housing Authority, 33 AD2d 1037 (2d Dept 1970)]. The latter liberally permits intervention for "interested persons" and is addressed to the sound discretion of the court [White v. Inc. Village of Plandome Manor, 190 AD2d 854 (2d Dept 1993), lv app den 83 NY2d 752 (1994)]. Here Kamintzky's claim meets the requirements of both rules.
Respondent Doar protests too much in his argument that Kamintzky's request for intervention is both premature (prior to a determination regarding class certification) and untimely (because the parties have fully briefed the substance of the petition). Neither argument suffices. While respondent Doar objects that the rights of petitioners are already well-represented, this is not a basis for denial of intervention. Moreover, the fact that Kamintzky did not request a Fair Hearing is not dispositive.
Exhaustion of remedies is not required where, as here, an administrative remedy would be futile [Watergate II Apartments v. Buffalo Sewer Authority, 46 NY2d 52, 57 (1978); LeHigh Portland Cement Co. v. New York State Dept. of Environmental Conservation, 87 NY2d 136, 140 (1995)]. Petitioners further point out that any limitations defense is unfounded because Kamintzky never received any notice or explanation of the reduction of his food stamp allotment [see Bryant v. Perales, 161 AD2d 1186, lv app den 76 NY2d 710 (1990) ()]. The Court finds that on this record respondents have failed to demonstrate that Kamintzky's claims would be time-barred . Under liberal rules of construction, the Court concludes that as Kamintzky has a real and substantial interest in the outcome of these proceedings [County of Westchester v. Dept. of Health of the State of New York, 229 AD2d 460 (2d Dept 1996)], leave to intervene should be Granted.
Petitioners seek certification of this proceeding as a class action pursuant to CPLR §901 and 902. One of the prerequisites to such certification is a showing that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy" [CPLR §901(a)(5)]. However, a class action is not superior to an ordinary lawsuit where it is brought against a government entity since stare decisis will afford adequate protection to members of the class [Neama v. Town of Babylon, 18 AD3d 836 (2d Dept 2005), lv app dsmd in part, den in part 6 NY3d 791 (2006); Board of Education of City School District of City of New Rochelle v. County of Westchester, 282 AD2d 561 (2d Dept 2001), lv app dsmd 97 NY2d 677; Jackson v. Blum, 80 AD2d 1076, 1077 (3d Dept 1981)]. In such circumstances where governmental operations are involved, "class action relief is not necessary" [Matter of Martin v. Lavine, 39 NY2d 72, 75 (1976); Matter of Jones v. Berman, 37 NY2d 42, 57 (1975); Jones v. Board of Education of Watertown City School District, 30 AD3d 967, 970 (4d Dept 2006)]. There has been no showing on this record that governmental policy and stare decisis will not assure safe harbor due to the socio-economic plight of the putative class, as argued by petitioners. Accordingly, class certification is Denied.
Petitioners move for partial summary judgment on their fourth cause of action for violation of Article IV §8 of the New York State Constitution and Article 2 of the State Administrative Procedure Act "SAPA". Article IV §8 states that the effectiveness of any rule or regulation made by any state department commences upon filing in the office of the Department of State, and Article 2 of SAPA sets forth its rule-making procedures. Petitioners argue that the determination of food stamp benefits to group home residents under GHSBP falls within the purview of a "rule", and therefore must be subject to statutory and constitutional rule-making requirements.
A rule is defined in SAPA as "the whole or part of each agency statement, regulation or code of general applicability that implements or applies the law, or prescribes a fee charged by or paid to any agency or the procedure or practice requirements of an agency" (SAPA § 102(2)). For constitutional purposes, the courts have defined a rule as "a fixed general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme" [Matter of Roman Catholic Diocese of Albany v. New York State Dept. of Health, 66 NY2d 948, 951 (1985)], and this finding has been applied to determinations under SAPA [Matter of Cordero v. Corbisiero, 80 NY2d 771, 772-773 (1992)]. In particular, administrators cannot avoid the required rule-making procedures by characterizing a change as a "policy," where the change is a "rigid numerical policy invariably applied across-the-board to all claimants...
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