LeGodais v. Barbaro

• Decision Date: 29 September 1969
• Citation: 304 N.Y.S.2d 476,60 Misc.2d 988
• Parties: Application of Rene LeGODAIS and Virginia LeGodais, Petitioners, for a Judgment pursuant to Article 78 of the CPLR v. Joseph BARBARO, as Commissioner of the Nassau County Department of Social Services, Respondent.
• Court: New York Supreme Court

Page 476

304 N.Y.S.2d 476

60 Misc.2d 988

Application of Rene LeGODAIS and Virginia LeGodais,

Petitioners, for a Judgment pursuant to Article 78

of the CPLR v. Joseph BARBARO, as Commissioner of the Nassau County

Department of Social Services, Respondent.

Supreme Court, Special Term, Nassau County, Part I.

Sept. 29, 1969.

Nassau County Law Services Committee, Inc., for petitioners, by Carl Jay Nathanson, Freeport, of counsel.

Morris H. Schneider, County Atty., Nassau County, Mineola, for respondent.

MEMORANDUM

BERTRAM HARNETT, Justice.

Rene and Virginia LeGodais own their own home in Levittown where they live with their two children. Their home is subject to a mortgage of $16,400 held by the Greenpoint Savings Bank and payable in monthly instalments of $156 per month prior to April 1, 1969 and $169 per month thereafter. Rene LeGodais was injured in January of 1969 and will be temporarily incapacitated until late this year. As a result of his injury, the LeGodais family was forced to go on public assistance which commenced April 1, 1969. During this period of time, they were unable to meet their mortgage payments. The question of mortgage payments was discussed with the LeGodais' caseworker who allegedly told them that the payments would be made, but, on July 10, 1969, Mrs. LeGodais received a letter from the Social Services Department stating that it would not pay the mortgage arrears. During this time, the attorneys for the mortgagee had instituted mortgage foreclosure proceedings.

Now that foreclosure of their home is imminent, Mr. and Mrs. LeGodais bring this proceeding in order to obtain a direction to the Commissioner that the mortgage arrears be satisfied and a monthly shelter allowance in the amount of $155 per month be granted until Mr. LeGodais can resume his employment.

The Commissioner contends that the petition ought to be dismissed because (1) the petitioners have failed to exhaust their administrative remedies; (2) he is under no duty to pay carrying charges in excess of the maximum established rate schedule; (3) he has an affirmative duty not to make payments in excess of the established rate schedule; and (4) that the LeGodais family is not entitled to a shelter allowance because they concealed the fact that Mr. LeGodais received Workmen's Compensation payments as a result of his injury, and used part of these funds make payments on the LeGodais automobile.

The Commissioner is directed to grant a shelter allowance to prevent the foreclosure of the LeGodais' home. The reasoning which compelled the result in Matter of Veit v. Barbaro, 59 Misc.2d 117, 298 N.Y.S.2d 251, is dispositive of this proceeding. The Court notes that, while Subdivision 2 of Section 353 of the Social Services Law provides for a fair hearing when a person disagrees with the decision of the Commissioner, the petitioners will not be required to exhaust their administrative remedies where the relief sought in such a hearing would come only after the harm sought to be prevented had become a reality, Matter of Veit v. Barbaro, 59 Misc.2d 117, 298 N.Y.S.2d 251, Supra; Dailey v. City of New York, 170 App.Div. 267, 156 N.Y.S. 124, affirmed 218 N.Y. 665, 113 N.E. 1053; Boston & Main R.R. v. Delaware & Hudson Co., 238 App.Div. 191, 264 N.Y.S. 470; Lesron Junior, Inc. v. Feinberg, 13 A.D.2d 90, 213 N.Y.S.2d 602.

The Commissioner's principal arguments center around the wording of 18 N.Y.C.R.R. Sections 80.12(a) and 352.4(e)(2)(i) and (ii) (the last two subsections being the predecessors to the present subsections 352.4(a)(6)(iv) (a) and (b)). Under Rule 80.12(a), allowances in lieu of rent are required in cases of temporary need. Under the Rule, these payments cannot exceed the amount that the recipient would be entitled to under his agency's rent schedule. Section 352.4(e)(i) stated that, on client-owned property used as a home, carrying charges shall be Met 'as paid' for taxes, interest on mortgage, fire insurances and assessments. Section 352.4(e)(ii) provided that amortization payments could be paid when they were essential to retain the home of the recipient and the carrying charges did not exceed the maximum of the established rent...