Nuckel v. Wyman

• Court: New York Supreme Court
• Citation: Nuckel v. Wyman, 304 N.Y.S.2d 507, 61 Misc.2d 26 (N.Y. Sup. Ct. 1969)
• Decision Date: 01 May 1969
• Docket Number: No. H,H
• Parties: Rose NUCKEL, on behalf of herself and as Guardian of Kathleen Nuckel, an infant, Guardian of Stephen Nuckel an infant, Guardian of John Nuckel, an infant, Guardian of Kevin Nuckel, an infant, and Guardian of Susan Nuckel, an infant, Plaintiff, v. George K. WYMAN, as Commissioner of the New York State Department of Social Services and Joseph S. Barbaro as Commissioner of the Nassau County Department of Social Services, Defendants. . Sept, 8, 1969. Elihu Kasten, Oceanside, for plaintiffs. Louis J. Lefkowitz, Atty. Gen., by Robert S. Hammer, Asst. Atty. Gen., New York City, for defendant Wyman. Morris H. Schneider, Mineola, by Morton M. Meltzer,yde Park, for defendant Barbaro. DANIEL G. ALBERT, Justice. In an action brought to obtain a judgment declaring the recently enacted section 139--a of the Social Services Law unconstitutional and enjoining the defendants from implementing it, the plaintiffs seek a temporary injunction restraining the defendants from enforcing the statute in issue during the pendency of this action. The challenged statute (L.1969, c. 184, § 8), which took effect on

Page 507

304 N.Y.S.2d 507

61 Misc.2d 26

Rose NUCKEL, on behalf of herself and as Guardian of Kathleen Nuckel, an infant, Guardian of Stephen Nuckel an infant, Guardian of John Nuckel, an infant, Guardian of Kevin Nuckel, an infant, and Guardian of Susan Nuckel, an infant, Plaintiff, v. George K. WYMAN, as Commissioner of the New York State Department of Social Services and Joseph S Barbaro as Commissioner of the Nassau County Department of Social Services, Defendants.

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

Sept, 8, 1969.

Elihu Kasten, Oceanside, for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., by Robert S. Hammer, Asst. Atty. Gen., New York City, for defendant Wyman.

Morris H. Schneider, Mineola, by Morton M. Meltzer, No. Hyde Park, for defendant Barbaro.

DANIEL G. ALBERT, Justice.

In an action brought to obtain a judgment declaring the recently enacted section 139--a of the Social Services Law unconstitutional and enjoining the defendants from implementing it, the plaintiffs seek a temporary injunction restraining the defendants from enforcing the statute in issue during the pendency of this action.

The challenged statute (L.1969, c. 184, § 8), which took effect on May 1, 1969, provides insofar as pertinent, that any person who applies for hime relief or aid to dependent children within one year after arrival in this State

'shall be presumed to have come into the state for the purpose of receiving public assistance or care and the social services official where application is made, shall deny public assistance and care of such applicant unless such applicant shall establish by clear and convincing proof that the purpose of his or her entry was not for the purpose of securing public assistance and care in this state.'

The plaintiff Rose Nuckel arrived in New York in July, 1969, with her five infant children, after her husband had deserted his family in Florida. Shortly after arriving in this State, she applied to the Nassau County Department of Social Services for assistance under the Aid to Dependent Children Program. On August 12, 1969, the plaintiff parent was notified that aid was being refused upon the basis of the statute quoted Supra.

In her affidavit in support of this application, the plaintiff Rose Nuckel avers that she was born in this State and resided here until after her marriage when her husband obtained employment out of State. She also claims that she had returned to the State in August, 1968, and remained here until May, 1969, during which time she received partial welfare assistance.

Plaintiffs' application relies almost exclusively on the recent decision of the United States Supreme Court in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. In that case, the Supreme Court affirmed the determination of a three-judge ...