Monta v. Broome County Dept. of Social Services

• Decision Date: 27 December 1974
• Citation: 80 Misc.2d 272,362 N.Y.S.2d 969
• Parties: Application of Delores MONTA, Petitioner, For a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. BROOME COUNTY DEPARTMENT OF SOCIAL SERVICES, et al., Respondents.
• Court: New York Supreme Court

Page 969

362 N.Y.S.2d 969

80 Misc.2d 272

Application of Delores MONTA, Petitioner, For a judgment

pursuant to Article 78 of the Civil Practice Law and Rules, v. BROOME COUNTY DEPARTMENT OF SOCIAL SERVICES, et al., Respondents.

Supreme Court, Special Term, Broome County.

Dec. 27, 1974.

Broome Legal Assistance Corporation (Seymour Nathanson, Binghamton, of counsel), for petitioner.

Thomas B. Oakes, Binghamton, for respondent, Carrol A. Smythe, as Commissioner of the Broome County Department of Social Services.

Louis J. Lefkowitz, Atty. Gen., of the State of New York (Marvin S. Tanenhaus, Binghamton, of counsel), for respondent, Abe Lavine, as Commissioner of the New York State Department of Social Services.

DAVID F. LEE, Jr., Justice.

In this proceeding pursuant to article 78 of the CPLR petitioner seeks 'judgment annulling and reversing the Fair Hearing decision of respondent Lavine, dated September 20, 1974, and ordering the respondents to reimburse any and all deductions of public assistance made pursuant thereto * * *'

The petitioner and her 13-year-old son were recipients of public assistance of Aid to Families with Dependent Children (AFDC) from the respondent Broome County Department of Social Services. The petitioner received $32.40 semimonthly for her minor son. On December 5, 1973 petitioner pleaded guilty to welfare fraud and was to make restitution in the sum of $1,941.32. She was not included in the household grant from July 1, 1973 as '(s)he had been deleted from the grant in order to recoup prior welfare overpayments which she had fraudulently received.' The petitioner's counsel notes in a memorandum:

'After months of the regular recoupments from the family's grant, and after paying off accumulated past due bills for food and furniture, and after buying her child needed clothing, petitioner was unable to pay the rent of $90.00 due on April 1, 1974 on the apartment dwelling in publicly funded housing in which she and her child resided. On april 16, 1974, a day before the family was threatened with loss of the apartment as the result of an eviction proceeding brought by the landlord based on nonpayment of rent, petitioner, possessing only $26.00 to meet current expenses for the rest of the month, sought assistance from the local welfare department. The agency determined that petitioner was not entitled to reinstatement of any part of her share of the grant because of past fraud, but gave her a payment of $64.00 to be used in addition to the $26.00 to pay the rent. Thereafter, the welfare department notified petitioner of its intention to reduce the family's monthly grant by additional equal installments per month over a period of eight months, as a means of recouping the $64.00 granted to the family above its regular assistance grant in order to prevent eviction.

'Petitioner has sought an administrative review of the local agency's action, and that action was affirmed by the State Department of Social Services, except that the number of monthly installments was reduced to six. * * *

'* * * The only issue between the parties, therefore, involves the recoupment of the special rent allowance.'

On May 1, 1974 the grant received semimonthly for the minor son in the sum of $32.40 was reduced to $25.90. The 'Notice of Intent to Reduce Public Assistance', dated April 16, 1974, stated, in part: 'We are deducting the $64.00 special check you received at the rate of $8.00 monthly over the next eight months', and that the effective date of the reduction was May 1, 1974. A fair hearing was held at the request of petitioner. The fair hearing, held on August 14, 1974, as noted in the record of that hearing, reviewed the 'determination made by the Broome County Department of Social Services relating to (petitioner's) grant of aid to dependent children, in that the agency had determined to reduce her cash grant of assistance on behalf of her child, effective May 1, 1974, in order to recover for an advance allowance for rent of $64 at the rate of $8.00 per month over eight months which had been provided to the (petitioner) in order to forestall an eviction. * * *' The decision of the respondent Lavine after the fair hearing, and which is dated September 3, 1974, states, Inter alia:

'1. The appellant resides in a household with one minor child, age thirteen. The appellant is currently in receipt of a grant of aid to dependent children as payee for her minor child.

'2. The appellant is not at this time a recipient of public assistance and has not received a cash grant of assistance for herself since July 1, 1973 when assistance to meet her needs was discontinued because of overpayment.

'3. On April 16, 1974, the agency determined to reduce the cash grant of assistance for appellant's minor child from $32.40 to $25.90 semi-monthly effective May 1, 1974 on the grounds that appellant had received an advance allowance for rent of $64.00 to forestall eviction. The grant for the minor child was to be reduced at the rate of $8.00 monthly for eight successive months.

'The record in this case establishes that the appellant was provided an advance allowance for rent to prevent eviction. The aforecited Regulation (Section 352.7(g)(7) of the Regulations of the State Department of Social Services) clearly states that such advance shall be deducted from subsequent grants. As appellant is payee of a grant of assistance, the agency correctly determined that it may recover the advance from the grant being issued to her. The advance was made to prevent the eviction of not only appellant but her family as well. Accordingly, the determination of the agency was correct. However, the recovery is limited to a six month period.

'DECISION: The determination of the agency is affirmed.'

Petitioner's counsel urges, among other things, in a memorandum, that petitioner met all of the statutory requirements for eligibility for emergency assistance, and urges, in part:

'In the present case the record clearly establishes that the grant of assistance to prevent eviction was necessary to avoid destitution and provide living arrangements for the minor under petitioner's care. The petitioner had spent all of her available income except for $26.00 and she and her 13 year old child were threatened with being put out on the street without alternative housing and available income for the remainder of the month. There is evidence on the record that this situation did not arise because of petitioner's failure to accept employment or training for employment, and that no emergency assistance had been granted to the petitioner for any period in the twelve months preceding her application on April 16, 1974. No serious attempt has been made by the respondents to show that the petitioner has not adequately established any of these conditions.

'It is clear, therefore, from all of the evidence at the hearing that petitioner presented the welfare department with sufficient proof, on April 16, 1974, that she was eligible for a grant of emergency assistance to needy families with children under the Social Security Act, 42 U.S.C 606(e)(1), Section 350--j of the Social Services Law and the regulations that apply to emergency assistance, and in fact, received such assistance.'

In a letter memorandum petitioner's counsel also urges, Inter alia:

'The respondents, State and County Commissioners of Social Services have done indirectly what they may not do directly. Applying the regulation here in question, (18 NYCRR 352.7(g)(7)) they have effectively withheld emergency assistance from a needy child who otherwise meets All of the conditions of eligibility for such assistance under both Federal and State statutes and regulations. (42 U.S.C. Section 606(e)(1), N.Y. Social Services Law Section 350--j, 45 C.F.R. 233.120, and 18 NYCRR Part 372) Whereas, emergency assistance may not be recouped, an advance payment, under 18 NYCRR 352.7(g)(7), may be deducted from future public assistance grants in order to recoup the amount advanced; and it is undisputed that the payment made by respondent Smythe to the petitioner on behalf of her child to prevent eviction will be deducted from future assistance grants made to the Child in order to recoup the advance. (R. 20)

'* * * (T)he reduction of the grant to the petitioner's child based solely on petitioner's misconduct improperly establishes an additional eligibility requirement. King v. Smith, 88 Sup.Ct. 2128, 392 U.S. 309; (20 L.Ed.2d 1118) Cooper v. (Laupheimer) Lapheimer, 316 F.Supp. 264 (E.D.Penn.1970); Bradford v. Juras, 331 F.Supp. 167 (D.Oregon 1971); Shirley v. Lavine, 365 F.Supp. 818 (N.D. New York 1973). In these cases the courts have proclaimed that the primary purpose of the Federal Aid to Families with Dependent Children (AFDC) program is the protection of children and therefore, the children remain eligible for AFDC assistance notwithstanding their parent's impropriety, illegal or even criminal; and recognized that current needs of the children are not lessened by overpayments received in the past.'

Counsel representing the respondent Lavine urges that section 103--b of the Social Services Law, as amended by the Laws of 1974, Chapter 979, gives retroactive authority for recoupment of overpayments, and that 'the advance of the $64.00 is not properly classified as 'emergency assistance',' and urges, Inter alia:

'Emergency is defined as 'a sudden, unexpected happening, an unforeseen occurrence or condition . . .;' Black's Law Dictionary, 4th Edition.

'Whereas here the Petitioner caused her own predicament, it cannot be properly classified as an emergency. See Baumes v. Lavine, 44 A.D.2d...