Miles v. Lascaris
| Citation | 84 Misc.2d 96,375 N.Y.S.2d 829 |
| Parties | Application of Theresa MILES et al., Petitioners, For a Judgment Pursuant to Article 78 of Civil Practice Law and Rules v. John L. LASCARIS, as Commissioner of the Onondaga County Department of Social Services, Respondent. |
| Decision Date | 01 December 1975 |
| Court | United States State Supreme Court (New York) |
The petitioners, recipients of a public assistance shelter allowance promulgated by the respondent commissioner of the Onondaga County Department of Social Services under the authority of 18 NYCRR 352.3(a), have brought this CPLR Article 78 proceeding seeking a declaration that the schedule of allowances so promulgated is, because of its inadequacy, arbitrary and capricious. They also seek an order directing the respondent to formulate a new schedule to be applied retroactively to January 1, 1975. They further seek recovery of costs, disbursements and counsel fees. They have brought this proceeding as a class action. (See Young v. Shuart, 67 Misc.2d 689, 325 N.Y.S.2d 113.) It was brought, heard and decision reserved under the provisions of CPLR 1005 ).
Since the hearing in this matter and as the direct result of a proceeding entitled 'JOHN L. LASCARIS, as Commissioner of Social Services of Onondaga County, Plaintiff, vs. NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES and STEPHEN BERGER, as Commissioner of the New York State Department of Social Services, Defendant', in the Supreme Court of Onondaga County before the Hon. Donald H. Miller, justice presiding, a new shelter allowance has been promulgated by the respondent commissioner to become effective as of October 1, 1975. Consequently the application to direct the respondent to formulate a new schedule in this proceeding has become moot.
Even if we assume that the shelter allowance that was the subject of this proceeding was an arbitrary and unreasonable determination, it does not follow that, on the basis of this petition, we can order the implementation of the new schedule retroactively back from October 1, 1975 to January 1, 1975. Such an order would effectively hold that the damages suffered by the two petitioners here from the inadequacy of the old schedule were typical of a class which they purport to represent.
In essence, the two petitioners here maintain that in this proceeding they are representatives 'of a common or general interest of many persons' and hence this qualifies as a class action under CPLR 1005(a). In support of this demand for what must be labelled damages from January 1 to October 1st, they contend that the allowance paid was inadequate to meet their monthly housing costs and that they had to chann moneys earmarked for other purposes into meeting these costs. They claim that this diversion of money made them unable to purchase necessary clothing and food for their families or to cover mandated expenses such as electricity bills. The stated, but unproven assumption from the evidence of their condition is that all of the other shelter allowance recipients in the county suffered similar injury for the same reason in a roughly equivalent amount. Upon this assumption rests the petitioners' contention that this is a proper subject for a class action.
A recent development of the law has been the recognition of a broader range of permissible class actions (Moore v. Metropolitan Life Ins. Co., 33 N.Y.2d 304, 313, 352 N.Y.S.2d 433, 438, 307 N.E.2d 554, 558). No rule has been set for denying or permitting class actions other than that such a determination involves a case-by-case 'consideration of the nature and strength of the tie among members of the class' (Ray v. Marine Midland Grace Trust, 35 N.Y.2d 147, 153, 359 N.Y.S.2d 28, 33, 316 N.E.2d 320, 323). Nonetheless, the need to ascertain that common questions predominate over individual ones has not been discarded as a criterion of the validity of a class action (Ray v. Marine Midland Trust, supra); nor has the fact that wrongs were committed pursuant to a common plan permitted the invocation of a class action suit where the wrongs done were individual in nature or subject to individual defenses (Gaynor v. Rockefeller, 15 N.Y.2d 120, 129, 256 N.Y.S.2d 584, 589, 204 N.E.2d 627, 631; Society Milion Athena, Inc. v. National Bank of Greece, 281 N.Y. 282, 292, 22 N.E.2d 374, 376).
In this proceeding the petitioners have failed to make clear exactly whom as a class they purport to represent. The class cannot constitute everyone receiving a shelter allowance in Onondaga County because the evidence indicates that there are some recipients whose monthly housing costs did not exceed the shelter allowance and who may therefore be unaffected by the inadequacy of the schedule.
Presumably then, the class the two petitioners purport to represent must be those like themselves who paid more each month in rent than they...
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...Practice Commentaries, Joseph M. McLaughlin, C. 901:3; Weinstein-Korn-Miller, N.Y.Civ.Practice, P 901.08; cf. Matter of Miles v. Lascaris, 84 Misc.2d 96, 98, 375 N.Y.S.2d 829, 831). While the amounts potentially recoverable by each member of the class may differ, such circumstance is not su......
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