Jiggets v. Grinker

• Decision Date: 12 January 1988
• Citation: 528 N.Y.S.2d 462,139 Misc.2d 476
• Court: New York Supreme Court
• Parties: Barbara JIGGETS, on behalf of herself, her three children and all others similarly situated, Plaintiffs, v. William J. GRINKER, as Commissioner of the New York City Department of Social Services, Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Defendants.

Page 462

528 N.Y.S.2d 462

139 Misc.2d 476

Barbara JIGGETS, on behalf of herself, her three children and all others similarly situated, Plaintiffs, v. William J. GRINKER, as Commissioner of the New York City Department of Social Services, Cesar Perales, as Commissioner of the New York State Department of Social Services et al., Defendants.

Supreme Court, New York County IAS Part 25.

Jan. 12, 1988.

Robert Abrams, Atty. Gen., (Robert Schack, of counsel), New York City, for defendant Perales.

Peter L. Zimroth, Corporation Counsel, (George Gutwirth, of counsel), New York City, for defendant Grinker.

Gutman & Mintz, P.C., Richmond Hills, for defendant Ocean Park Realty.

Gupta & Prasad Realty, pro se.

Paul N. Gruber, Novick, Edelstein, Lubell, Reisman Wasserman & Leventhal, New York City, for defendant Bosmor Realty Corp.

Cymco Realty Co., pro se.

Cohen, Hurkin, Ehrenfeld, Pomerantz & Tenenbaum, Brooklyn, for defendant Empire Realty Co. and defendant-Arverne Associates.

Simon, Wasserman & Weinberg, Brooklyn, for defendant Lorichame Realty Corp.

Morton B. Dicker, Ann Moynihan, Director of Trial Litigation, The Legal Aid Society, Park Place Trial Office, (Foster S. Maer, David Frazer, of counsel), John E. Kirklin, Director of Litigation, The Legal Aid Society Civil Appeals and Law Reform Unit (Matthew Diller, Nancy Morawetz, of counsel), Helaine Barnett, Project Director, Arthur Fried, Supervising Atty., The Legal Bronx Legal Services (Andrew Goldberg, of counsel), New York City, for plaintiff-intervenor Hughes.

Aid Society, (Shawn P. Leary, of counsel) Homeless Families Right Project, New York City, John T. McManus, The Legal Aid Society, Far Rockaway Neighborhood Office, (Fred Rosa, of counsel), Far Rockaway, for plaintiff Jiggetts, plaintiff-intervenors Felder, Artiaga, Beal, Sanchez, and Green and the plaintiff class.

INTRODUCTION

KARLA MOSKOWITZ, Justice:

Plaintiffs and plaintiff-intervenors (hereinafter collectively referred to as "plaintiffs") are recipients of public assistance under the Aid to Families with Dependent Children Program (hereinafter "AFDC"). Defendant Grinker is Commissioner of the New York City Department of Social Services (hereinafter "NYCDSS"). Defendant Perales is Commissioner of the New York State Department of Social Services (hereinafter "NYSDSS").

Plaintiffs and plaintiff-intervenors challenge defendants Grinker's and Perales' policy and practice of denying rent arrears grants to families with children receiving public assistance whose monthly rent exceeds their monthly shelter allowance as set forth in 18 N.Y.C.R.R. § 352.3. ¹ Plaintiffs seek interim and permanent injunctive relief; declaratory relief; class action certification pursuant to CPLR Article 9; and attorneys' fees pursuant to 42 U.S.C. § 1988 and CPLR § 909.

Specifically, plaintiffs seek a judgment declaring that 18 N.Y.C.R.R. § 352.3 which sets forth the local agency maximum monthly shelter allowances is contrary to law and that defendant Grinker's and defendant Perales' policy of denying rent arrears grants to families with children whose rent exceeds the maximum shelter allowance is contrary to law.

Plaintiffs move for a permanent injunction enjoining Grinker and Perales from applying maximum rent schedules which do not enable families with children to obtain and maintain housing in New York City; from applying their policies which mandate denial of requests for rent arrears which exceed the maximum monthly shelter allowance; and from refusing individual requests for rent arrears. Plaintiffs request payment of all rent arrears to date of judgment.

Defendant Grinker moves to dismiss the complaint for failure to state a cause of action. Grinker claims that it is the function of the Legislature to determine and set rent schedules for recipients of public assistance. He argues that the court lacks jurisdiction to compel the Legislature to make specific budgetary appropriations. Grinker also opposes plaintiffs' motion for a preliminary injunction and class certification.

Defendant Perales moves to dismiss the complaint for lack of subject matter jurisdiction and failure to state a cause of action. Perales contends that the extent to which the Legislature determines how to meet the needs of public assistance families with children rests entirely in its own discretion and is beyond review by the courts.

Defendant Ocean Park Company (hereinafter "Ocean Park") is plaintiff Barbara Jiggets' landlord. Ocean Park moves to dismiss plaintiffs' claims as against it for failure to state a cause of action. Ocean Park takes no position whether defendants Grinker and Perales are acting outside the scope of any Legislative mandate. However, Ocean Park does oppose Barbara Jiggets' motion for a preliminary injunction.

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MOTION TO DISMISS

Defendants Grinker and Perales move to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211. On a motion to dismiss, the court must consider whether plaintiffs' factual allegations manifest any cause of action cognizable at law. Foley v. D'Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121 (1st Dep't 1964). In a situation where the movant offers documentation other than the pleadings, supporting Aid to Families with Dependent Children is a joint Federal and State Program to provide financial assistance to needy families with dependent children. See, Shea v. Vialpando, 416 U.S. 251, 253, 94 S.Ct. 1746, 1750, 40 L.Ed.2d 120 (1974). Under Title IV-A of the Social Security Act, states receive federal grants in aid to provide a partial subsidy for cash benefits provided by the states to needy families with dependent children. 42 U.S.C. §§ 601-610. The State administers the program under a State plan which must meet the federal requirements set forth in Title IV-A. However, states have considerable discretion in setting standards of need and in determining the amount of benefits to be paid by those who are eligible. Shea v. Vialpando, supra. If the income and resources fall below the standard of need the family is "needy". 42 C.F.R. § 233.20(a)(2), (3)(ii)(A). "The standard of need is not the amount of assistance actually paid to a needy family." Godboldt v. Coler, Case No. 81-2862 (Fla.Cir.Ct.1987) slip op. 6. The State may set a lower "standard of payment" as a maximum monthly grant. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct.1207, 25 L.Ed.2d 442 (1970); Massachusetts Coalition for the Homeless v. Secretary, 400 Mass. 806, 511 N.E.2d 603, 608 (1987).

                affidavits, for example, the court "need not assume the truthfulness of the pleaded allegations."   Kaufman v. IBM, 97 A.D.2d 925, 926, 470 N.Y.S.2d 720 (3d Dept.1983);   see also, Penato v. George, 52 A.D.2d 939, 383 N.Y.S.2d 900 (2nd Dept.1976) app dismissed as moot, 42 N.Y.2d 908, 397 N.Y.S.2d 1004, 366 N.E.2d 1358 (1977).  Submissions offered on a motion to dismiss may "establish conclusively that plaintiff has no cause of action."   Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970 (1976)
                

Aid to the needy in New York state is "not a matter of legislative grace; rather, it is specifically mandated by our constitution." Tucker v. Toia, 43 N.Y.2d 1, 7, 400 N.Y.S.2d 728, 371 N.E.2d 449 (1977); see also, McCain v. Koch, 117 A.D.2d 198, 215, 502 N.Y.S.2d 720 (1st Dep't 1986), rev'd on other grounds, 70 N.Y.2d 109, 517 N.Y.S.2d 918, 511 N.E.2d 62 (1987).

Section 1 of Article XVII of the New York State Constitution states that:

The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.

Plaintiffs allege that defendants have failed to comply with this constitutional directive and statutory and regulatory mandates which are set forth in the Social Services Law and New York City Code of Rules and Regulations.

In New York State, the standard of need is set forth in Soc.Ser.Law § 131-a(2) and 18 N.Y.C.R.R. § 352.1. However, plaintiffs do not challenge this standard of need. Rather, they challenge the rent allowance schedule as insufficient to comply with legislative directives to care for needy families with children.

The question before the court is whether the statutory and regulatory scheme which provides aid to families with dependent children is mandatory or precatory. If the "statutory directive is mandatory, not precatory, it is within the court's competence to ascertain whether [the] administrative agency has satisfied the duty which has been imposed on it by the Legislature and, if it has not, to direct the agency proceed forthwith to do so." Klostermann v. Cuomo, 61 N.Y.2d 525, 531, 475 N.Y.S.2d 247, 463 N.E.2d 588 (1984). If this court finds that a mandatory directive has been established, then plaintiffs will have stated a cognizable cause of action and defendants' motion to dismiss must be denied.

The court finds that plaintiffs' claims relating to emergency assistance pursuant to Soc.Ser.Law § 350-j and 18 N.Y.C.R.R. § 352.7(g) are without merit. The statutes and regulations plaintiffs rely on provide for emergency assistance in very specific, limited circumstances.

Similarly, plaintiffs' claims pursuant to Soc. Ser. Law § 131 are without merit. The phrasing used in the statute "insofar The court agrees with defendants' claim that plaintiffs' allegations concerning § 131-a are non-justiciable. Defendants mainly rely on the decisions in Bernstein v. Toia, 43 N.Y.2d 437, 402 N.Y.S.2d 342, 373 N.E.2d 238 (1977); Ram v. Blum, 77 A.D.2d 278, 432 N.Y.S.2d 892 (1st Dept.1980) app. withdrawn, 54 N.Y.2d 834 (1981); Weinhandler v. Blum, 84 A.D.2d 716, 44 N.Y.S.2d 3 (1st Dept.1980), app. withdrawn, 56 N.Y.2d 649 (1982). In these three actions, plaintiffs unsuccessfully challenged the regulatory and statutory scheme which set forth shelter allowances to public aid recipients (18 N.Y.C.R.R. 352.3 and Soc.Ser.Law §...