Montalvo v. Blum

• Decision Date: 13 November 1980
• Citation: 78 A.D.2d 809,433 N.Y.S.2d 111
• Parties: In re Application of Carmen MONTALVO, etc., Petitioner, For a Judgment etc., v. Barbara BLUM, etc. et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 111

433 N.Y.S.2d 111

78 A.D.2d 809

In re Application of Carmen MONTALVO, etc., Petitioner, For a Judgment etc., v. Barbara BLUM, etc. et al., Respondents.

Supreme Court, Appellate Division, First Department.

Nov. 13, 1980.

C. A. Kubitschek, New York City, for petitioner.

G. Slotnik, New York City, for respondents.

Before KUPFERMAN, J. P., and FEIN, SANDLER, SULLIVAN and BLOOM, JJ.

MEMORANDUM DECISION.

In this transferred Article 78 proceeding, the determination of respondent State Commissioner of Social Services dated October 26, 1979, which affirmed respondent New York City Commissioner of Social Services' determination to discontinue the grant of aid to petitioner's three minor children, is annulled, and the matter remanded to the Commissioner without costs.

Three of the petitioner's minor children had been recipients of aid to dependent children, which was discontinued because of petitioner's failure to report employment and earned income. She failed to appear at a hearing on this matter, having been advised by her counsel not to appear.

This failure to appear was contumacious, and any determination with respect to petitioner herself which would deny her benefits, would be warranted. However, with respect to the children and Aid to Families with Dependent Children grants such a determination would not be binding upon them. Their mother's failure to comply with respondent's request cannot serve to invalidate their basis for support. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Matter of Gunn v. Blum, 48 N.Y.2d 58, 421 N.Y.S.2d 835, 397 N.E.2d 347.

The matter is remanded for restoration of the AFDC grants to the children and to determine the amounts to which the children should be entitled, taking into consideration whatever income can properly be attributed to the mother. Matter of Mitchell v. Toia, 63 A.D.2d 890, 405 N.Y.S.2d 713. See also Matter of Vailes v. D'Elia, App.Div., 432 N.Y.S.2d 204 (1980).

We call to the attention of the Commissioner of Social Services the fact, heretofore enunciated, that there must be compliance with the principle that the needs of indigent children are not to be neglected on the basis of their parents' dereliction.

All concur.