Norton v. Lavine

• Decision Date: 19 April 1973
• Citation: 344 N.Y.S.2d 81,74 Misc.2d 590
• Parties: Corinne NORTON, Individually and on behalf of her minor child, Arthur Norton, and on behalf of all other persons similarly situated, Petitioner, v. Abe LAVINE, Commissioner of the New York State Department of Social Services, and Hayes E. Overcash, Commissioner of the Rockland County Department of Social Services, Respondents.
• Court: New York Supreme Court

Page 81

344 N.Y.S.2d 81

74 Misc.2d 590

Corinne NORTON, Individually and on behalf of her minor child, Arthur Norton, and on behalf of all other persons similarly situated, Petitioner, v. Abe LAVINE, Commissioner of the New York State Department of Social Services, and Hayes E. Overcash Commissioner of the Rockland County Department of Social Services Respondents.

Supreme Court, Rockland County.

April 19, 1973.

[74 Misc.2d 592] Anne L. Glickman, New City, for petitioner.

Louis J. Lefkowitz, Atty. Gen., New York City, for respondent Lavine.

Arthur J. Prindle, County Atty., Rockland County, New City, for respondent Overcash.

JOHN C. MARBACH, Justice.

This Article 78 proceeding is brought to annul a decision (the Decision) by respondent, Abe Lavine (Lavine) dated September 11, 1972, made after a fair hearing that affirmed the termination of welfare assistance to petitioner and her minor, dependent child by the respondent, Hayes E. Overcash.

The proceeding, brought as a class action, seeks a judgment annulling, reversing and setting aside the Decision and ordering respondents to reinstate petitioner's grant of benefits as of the date petitioner's benefits were wrongfully terminated.

Petitioner, Corinne Norton, and her minor, dependent child Arthur, aged seven and one-half years, were recipients of public assistance under the federally-funded Aid to Families with Dependent Children (AFDC) Program. They resided in a house owned by petitioner's mother and paid her a monthly rental of $150 which was used to satisfy monthly mortgage payments due upon the property.

On January 5, 1971, petitioner's mother died intestate, leaving petitioner as her sole heir. The estate has never been administratively settled and petitioner, although so advised, has never taken any action to do so. The Rockland County Department of Social Services (local agency) had granted petitioner and her son a monthly rental allowance of $150 prior to January, 1971; thereafter and until June, 1972, a monthly rental allowance of $183 was allowed.

In November of 1971, a settlement was reached in a negligence action in which petitioner was the plaintiff. From the proceeds of the settlement, the local agency received $1,727.43 which satisfied a lien it held on that cause of action. Petitioner states that the lien represented reimbursement of all public assistance previously furnished to petitioner. A balance remaining after payment of costs and attorneys fees of approximately $1,800 was used by petitioner to purchase an automobile.

In May of 1972, petitioner was hospitalized after receiving her full grant; all of her needs for that month were met by the hospital.

On May 5, 1972, the local agency sent petitioner a notice advising that her monthly AFDC categorical assistance grant would be reduced, effective June 1, 1972, because of the agency's determination that petitioner was not obligated to pay rent and, therefore, she was not entitled to receive a rental allowance. On May 12, 1972, the agency sent petitioner a 'Notice of Intent to Discontinue Public Assistance' on account of (1) 'overpayment in May' and (2) 'Determination of Eligibility'.

Prior to reaching the questions raised on the merits, two issues require resolution: whether, as respondents argue, the matter must be referred to the Appellate Division pursuant to CPLR 7804(g) on a question of substantial evidence, and whether the proceeding is maintainable as a class action.

REFERRAL TO APPELLATE DIVISION

Respondents' position on referral presumes without demonstrating that a question of substantial evidence is raised. The mere fact that a statutory hearing was held does not automatically invoke CPLR 7804, subd. (g), when the determination is sought to be reversed, annulled and set aside. Petitioner does not contest the findings upon the points that respondents claim raise questions of substantial evidence (Petitioner's Memorandum of Law, p. 7). The petitioner raises only questions of law, assuming the findings made are adequately supported, and such questions are for this court to decide. Matter of Robertson v. Lavine, 71 Misc.2d 757, 758, 337 N.Y.S.2d 237, 239; Matter of Komp v. State Tax Commission, 56 Misc.2d 824, 290 N.Y.S.2d 297.

CLASS ACTION RELIEF

Petitioner brings this proceeding 'on behalf of her minor, dependent child and on behalf of all other persons similarly situated', challenging respondents' application as to her and the classes she represents of Section 351.22 of the Regulations of the Department of Social Services (Regulations), 18 NYCRR 351.22 and Regulations § 352.31(d), 18 NYCRR 352.31(d). Petitioner also seeks individual relief setting aside that portion of the Decision which reduced petitioner's grant by eliminating her rent allowance.

The first hurdle is whether one proceeding may be maintained on behalf of two separate subclasses, coupled with a request for individual relief upon a third separate issue. The Federal Rules of Civil Procedure would permit such a proceeding, assuming proper classes existed, Fed.Rules Civ.Pro. 23(c)(4); 7A Wright and Miller, Federal Practice and Procedure § 1790. A proposal for a similar State rule has been suggested, Homburger, State Class Actions and the Federal Rule, 71 Col.L.Rev. 609, 651--656. New York cases on point are lacking although O'Brien v. Provident Loan Society of New York, 60 Misc.2d 506, 302 N.Y.S.2d 889, in defining a class action, emphasizes that it is 'one cause of action'.

However, in this day of liberalized pleading, including joinder of claims pursuant to CPLR 601, court backlogs and overwhelming burdens upon welfare recipients as well as welfare administrators, it makes little sense to honor and appease rigid interpretation at the expense of the courts, welfare recipients, governmental administrators and ultimately the taxpayer. If a true and appropriate class is found as to each issue asserted, a class action should be entertained and disposed of in one proceeding.

This course is not without precedent for the same approach was adopted in Francis v. Davidson, 340 F.Supp. 351 (D.C., Md., 1972) where a parent challenged assistance denials under an AFDC program. It has also been adopted in labor matters, Rios v. Enterprise Ass'n Steamfitters Local Union No. 638 of U.A., 54 F.R.D. 234 (S.D., N.Y., 1971) and in securities actions, Wolfson v. Solomon, 54 F.R.D. 584 (S.D., N.Y., 1972) and Benzoni v. Greve, 54 F.R.D. 450 (S.D., N.Y., 1972).

The expediency of class relief has frequently been recognized in cases where public assistance recipients challenge uniform adverse policies, Matter of Cisco v. Lavine, 72 Misc.2d 1009, 340 N.Y.S.2d 275 (1973) (and cases cited therein), modified upon reargument 72 Misc.2d 1087, 341 N.Y.S.2d 719 (1973). The test in determining whether a proper class action exists is whether the wrongs complained of are individual to the different persons involved and thus not properly subject of a class action, or whether they are the result of a breach of duty under governing statutes and regulations which adversely affects in the same way the interest of every grant recipient to which the statute or regulation is applied, Young v. Shuart, 67 Misc.2d 689, 325 N.Y.S.2d 113, mod. and affd. 39 A.D.2d 724, 331 N.Y.S.2d 962.

The court is asked as to Class A, composed of New York welfare recipients whose assistance has been suspended or about to be suspended pursuant to Section 351.22(c)(3)(i)(b) of the Regulations, 18 NYCRR 351.22, to determine the validity of a suspension of assistance on the grounds that continuing eligibility is questionable and under investigation. Class B is composed of all minor, dependent children otherwise eligible for categorical assistance under the Aid to Families with Dependent Children, U.S.Code, Tit. 42, § 601 et seq., Social Services Law, Title 10, § 343 et seq., whose assistance has been reduced, terminated, suspended or denied or who are threatened with such action, pursuant to Section 352.31(d) of the Regulations, 18 NYCRR 352.31(d). Petitioner on behalf of this class seeks a ruling upon the validity of such action without the benefit of a determination as to the continuing needs of the minor dependents.

In both situations, the challenge on behalf of the class is directed to an alleged breach of duty as to the members of the class arising out of the implementation of the specific sections of the Regulations. Such a breach, if established, adversely affects all members of the class in the same way, is a wrong done to all, susceptible to correction for the benefit of all, without prejudice to the interests of any member of the class and of common interest to many persons, Young v. Shuart, 67 Misc.2d 689, 325 N.Y.S.2d 113, supra. And in particular as to Class B, the problem is continuing, Matter of Ross v. Sipprell, 71 Misc.2d 677, 336 N.Y.S.2d 861, as respondents re-litigate the issue despite adverse decisions, Payne v. Sugarman, 39 A.D.2d 720, 331 N.Y.S.2d 813, affd. 31 N.Y.2d 845, 340 N.Y.S.2d 162; Matter of Robertson v. Lavine, 71 Misc.2d 757, 337 N.Y.S.2d 237, cf. dissenting opinion in Griffith v. Wyman, 39 A.D.2d 874, 875, 333 N.Y.S.2d 703, 705. The court is faced with separate questions of a claimed single wrong with widespread effect, Matter of Cisco v. Lavine, 72 Misc.2d 1009, 340 N.Y.S.2d 275 (1973) supra; Murphy v. Wyman, 68 Misc.2d 894, 328 N.Y.S.2d 520. The law in New York is now clear that an Article 78 proceeding may be treated in substance as an action for a declaratory judgment, Matter of Kovarsky v. Housing Development Admin. of City of New York, 31 N.Y.2d 184, 335 N.Y.S.2d 383; Young v. Shuart, 67 Misc.2d 689, 325 N.Y.S.2d 113, supra. The court holds that the interests of justice and judicial economy will be served by granting class relief in this proceeding so that a complete resolution of the issues raised can be attained. Murphy v. Wyman, 68 Misc.2d 894, 897, 328 N.Y.S.2d 520, 524.

Three issues are raised on the merits. The...