Laneve v. Toia

• Decision Date: 18 May 1978
• Citation: 408 N.Y.S.2d 171,95 Misc.2d 659
• Court: New York Supreme Court
• Parties: Application of Vito N. LANEVE, by his son Vito Laneve, Petitioner, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. Phillip TOIA, as Commissioner of the Dept. of Social Services of the State of New York, and John L. Lascaris, as Commissioner of the Dept. of Social Services of the County of Onondaga, Respondents.

Page 171

408 N.Y.S.2d 171

95 Misc.2d 659

Application of Vito N. LANEVE, by his son Vito Laneve,

Petitioner, for a Judgment Pursuant to Article 78

of the Civil Practice Law and Rules v. Phillip TOIA, as Commissioner of the Dept. of Social

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

Lascaris, as Commissioner of the Dept.

of Social Services of the

County of Onondaga,

Respondents.

Supreme Court, Onondaga County.

May 18, 1978.

Richard A. Wittenburg, Ryan Wittenburg & Shannon, Syracuse, for petitioner.

Sidney L. Grossman, Asst. Atty. Gen., Syracuse, for respondent Toia.

John A. Barnaba, Syracuse, for respondent Lascaris Dept. of Social Services.

Thomas ALOI, Justice.

DECISION

Respondent Commissioner Toia moves to dismiss the petition herein, as barred by § 135-a of the Social Services Law.

On September 8, 1976, petitioner filed an application for medical assistance on behalf of his then hospitalized 89 year old father with the Onondaga County Department of Social Services. The application was denied on October 18, 1976. A fair hearing was requested on March 7, 1977, and held on May 2, 1977. Respondent's "Decision after Fair Hearing" dated June 15, 1977, is the subject of a petition for review pursuant to Article 78 of the CPLR, not now before this court.

Respondent argues that petitioner is not entitled to judicial review of its decision, since the original hearing request was not made within 60 days of the agency action, pursuant to § 135-a of the Social Services Law (52A McKinney, 1974).

In answer to the motion to dismiss, petitioner claims a right to judicial review of respondent's decision on two grounds: (1) that since the notice of denial of assistance was defective, the request for a fair hearing was not untimely, and (2) that the Department of Social Services waived any objection to the timeliness of the request by holding a hearing and filing a decision.

Public assistance has been held a fundamental right, of which one may not be deprived without due process of law, which includes the right to a hearing and to timely and adequate notice to the recipient of agency action adverse to his interests. (Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, 1970, and progeny).

The laws of public assistance regulation and administration have justly been called "not only labyrinthine, but in some cases, almost impossible to discover", 76 Yale L.J. 1234, 1245 (1967). At the same time, many who request or receive aid are precisely those in our society least equipped by education, language, or force of circumstance to pursue their rights through the bureaucratic maze. See Kelly v. Wyman, 294 F.Supp. 893, 903 (S.D.N.Y. 1968). In recognition of this problem, courts have increasingly looked to the adequacy and fairness of the notice rather than to its technical sufficiency:

"In a very real sense, the fair hearing 'right' entails the full panoply of procedural protections prescribed under State and Federal regulations. Generally, these procedural requirements are construed in a manner so as to insure adequate notice and fairness for the aggrieved applicant or recipient."

Cisco v. Lavine, 72 Misc.2d 1009, 340 N.Y.S.2d 275 (S.Ct., Nassau Co. 1973); Mod. 72 Misc.2d 1087, 341 N.Y.S.2d 719 (1973).

Due process has been found lacking "where it is shown that the system designed to provide the opportunity for such a hearing has purposely built into it a procedure intended to deter the exercise of that right", Burgoyne v. Lukhard, 363 F.Supp. 831, 835 (U.S.D.C., E.D. Va. 1973).

"Under such a procedure only the aggressive receive their due process right to be advised of the reason for the proposed action. The meek and submissive remain in the dark and suffer their benefits to be reduced or terminated without knowing why the Department is taking that action",

Vargas v. Trainor, 508 F.2d 485, 490 (7th Cir. 1974).

In compliance with the constitutional requirements, both State and Federal regulations provide for a hearing to review the agency action (18 NYCRR 358; 45 CFR § 205.10(a)), and notice;

"Every applicant or recipient shall be informed in writing at the time of application and at the time of any action affecting his claim:

(i) Of his right to a hearing, as provided in paragraph (a)(5) of this section;

(ii) Of the method by which he may obtain a hearing;" (45 CFR § 205.10(a) (3)).

"Every applicant and recipient shall be informed in writing at the time of application and at the time of any action affecting his receipt of assistance or services: (a) Of his right to a fair hearing; (b) Of the method by which he may obtain a hearing;" (18 NYCRR § 358.3)

In New York, the request for a fair hearing must be made within 60 days of the agency action complained of. (Social Services Law § 135-a, 52A McKinney 1976).

Petitioner argues that the notice sent by the Department of its denial of medical assistance to his father was defective in that it failed to mention the 60-day time limit for requesting a hearing. While the notice petitioner received did contain the mandatory instructions regarding the right to representation and the availability of community legal services (18 NYCRR § 358.3(c) and (d)), he did not consult them because he already had an attorney. Unfortunately, substantial delay resulted from the attorney's illness and subsequent death. Petitioner argues that his request for a fair hearing made on March 7, 1977, was not barred by the statute, since the notice failed to give him adequate information of "the method by which he may obtain a hearing". (18 NYCRR § 358.3(b)).

No New York case has been called to this Court's attention which deals with the precise point raised herein. The courts of this state have, however, established some minimal requirements of notice through interpretation of these, or similar, regulations. The failure to give notice of an adverse agency decision tolls the 60-day period, Williams v. Schreck, 74 Misc.2d 818, 345 N.Y.S.2d 880 (S.Ct. Albany Co., 1973), as does a notice which is fundamentally defective, i. e., notice given orally rather than in writing, Barnes v. Reed, 84 Misc.2d 124, 374 N.Y.S.2d 898 (S.Ct. Monroe Co., 1975); or which fails to inform the petitioner of the right to a fair hearing, Winters v. Commissioner, 49 A.D.2d 843, 373 N.Y.S.2d 604 (1st Dept. 1975); Mosher v. Kurtis, N.Y.L.J. 9/25/69 p. 17 (S.Ct. Westchester Co.) or giving an erroneous explanation of the cancellation of benefits, Cruz v. Lavine, 45 A.D.2d 720, 356 N.Y.S.2d 334 (2d Dept. 1974).

The section regulating notice to one already a recipient of aid (18 NYCRR § 358(a)(2)) has been interpreted to require that notice include the conditions upon which assistance will be discontinued, (i. e., where the recipient requests an adjournment), Accurso v. Berger, 87 Misc.2d 520, 386 N.Y.S.2d 600 (S.Ct. Nassau Co., 1976).

The Federal courts have also required that notices become more informative: in Vargas v. Trainor, supra, the 7th Circuit found defective even a notice clearly...