Rivera v. Blum

• Decision Date: 27 July 1978
• Citation: 98 Misc.2d 1002,420 N.Y.S.2d 304
• Parties: Application of Maria RIVERA, etc., et al., Plaintiffs, v. Barbara B. BLUM, Commissioner, etc., et al., Defendants.
• Court: New York Supreme Court

Page 304

420 N.Y.S.2d 304

98 Misc.2d 1002

Application of Maria RIVERA, etc., et al., Plaintiffs, v. Barbara B. BLUM, Commissioner, etc., et al., Defendants.

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

July 27, 1978.

John F. Middlemiss, Jr., Legal Aid Society, Bay Shore by Dennis Masino, Bay Shore, of counsel, for plaintiffs

Leonard S. Clark, Hauppauge, Law Services Comm., for plaintiffs-intervenors.

Louis J. Lefkowitz, Atty. Gen., New York City by Emanuel M. Kay, New York City, of counsel, for defendant Blum.

Howard E. Pachman, County Atty. by Jerome Campo, Counsel, S. C. D. S. S., Hauppauge, for defendants.

FRANK P. DE LUCA, Justice.

This is an application for a preliminary injunction in which plaintiffs, recipients of public assistance grants from the Suffolk County Department of Social Services, seek to enjoin, pendente lite, defendants, the Commissioners of the New York State and Suffolk County Departments of Social Services from depriving plaintiffs of; 1) certain alleged Civil and privacy rights guaranteed by the United States Constitution, statute and regulation, 2) the right to representation by an attorney or other representative of their choice at any stage of proceedings before an arm of the Department of Social Services known as the Special Investigation Unit (SIU), and 3) proper notice of these rights, where applicable.

The New York State Commissioner of Social Services moves to dismiss the complaint on the grounds that it fails to state a cause of action.

Initially, a preliminary injunction may not be granted unless a clear right to the relief demanded is established upon the undisputed facts contained in the moving papers. Brand v. Bartlett, 52 A.D.2d 272, 383 N.Y.S.2d 668; Rohauer v. Killiam, 37 A.D.2d 547, 322 N.Y.S.2d 589; Instrument Systems Corp. v. V. La Rosa & Sons, Inc., 31 A.D.2d 766, 297 N.Y.S.2d 598. Thus, if injunctive relief is to be issued, it can only Plaintiff Maria Rivera is a mother of two (2) children and is a recipient of public assistance from the Suffolk County Department of Social Services in the Aid to Dependent Children category. During July 1977, Ms. Rivera was directed by letter to report to the Special Investigation Unit ² of the Suffolk County Department of Social Services because she allegedly had a cousin whose family was staying with her. The cousin was the sister of Ms. Rivera's daughter, (sic). Ms. Rivera was not advised of her right to representation, in writing, prior to appearing for the interview. What occurred at the interview is in dispute.

be issued as to matters arising out of the undisputed facts as established on this motion. These facts are as follows: ¹

Plaintiff Mary Ellen McGee is a mother of two (2) children and is a recipient of public assistance from the Suffolk County Department of Social Services in the Home Relief (HR) category. During March 1977, Ms. McGee was directed by letter to appear at the Special Investigations Unit of the Suffolk County Department of Social Services. Ms. McGee was not advised in writing of her right to representation prior to, or at the time of her appearance. What occurred at this interview is also in dispute.

Plaintiffs Ethel and Richard Poelstra are wife and husband respectively and are both permanently impaired in their speech and hearing. Miss Corinne Poelstra is their 15 year old daughter and is in the ninth grade. The Poelstras are recipients of public assistance from the Suffolk County Department of Social Services in the Aid to Dependent Children category. On or about January 19, 1977, Mr. and Mrs. Poelstra were directed by letter to appear at an interview at the office of the Special Investigations Unit, and neither being able to speak or hear, brought their 15 year old daughter Corinne with them as an interpreter in sign language. Neither was advised in writing of their right to representation or counsel. Plaintiff Richard Poelstra, after appearing before the SIU, signed an affidavit of confession of judgment as well as a confession of judgment and other papers admitting that he received welfare payments in excess of those to which he was entitled.

Plaintiff Dorothy Corr is a mother of two (2) children and is a public assistance recipient from the Suffolk County Department of Social Services in the Aid to Dependent Children category. Ms. Corr is a joint owner of a single family private home at 1463 Brooklyn Boulevard, Bay Shore, in which she resides with only her two children. Ms. Corr was required to sign a bond and mortgage as a condition of eligibility for public assistance on or about February 23, 1977. Ms. Corr signed the bond and mortgage and obtained the children's father's signature as demanded by the Suffolk County Department of Social Services, although his signature was not required by law. He was not on the grant, nor was he an applicant for public assistance. Ms. Corr was not given a copy of the bond and mortgage at the time she signed, but later obtained a copy.

To summarize the facts which are not in dispute insofar as the Suffolk County Commissioner of Social Services is concerned:

1) Plaintiffs Rivera, McGee and Poelstra were required to appear before the SIU and were not given written notice of their alleged right to be represented by counsel or a lay person of their own choosing.

2) Plaintiff Richard Poelstra, after appearing before the SIU, signed an affidavit of confession of judgment as well as a confession of judgment and other papers admitting that he received welfare payments in excess of those to which he was entitled.

3) Plaintiff Dorothy Corr was required to sign a bond and mortgage on her home prior to becoming eligible to receive welfare payments.

The balance of the factual allegations are in dispute.

In order to sharpen the issue presented on this motion, it should be noted that plaintiffs do not ask that counsel be assigned at public expense to assist them in proceedings before the SIU. It is settled that the right to assigned counsel at public expense, even at the fair hearings to be held before termination of benefits as mandated by Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, has not been recognized. Matter of Brown v. Lavine, 37 N.Y.2d 317, 372 N.Y.S.2d 75, 333 N.E.2d 374. What plaintiffs instead ask for is the right to consult counsel and to have counsel present, at plaintiff's expense or at the expense of a community legal services program or legal aid, during the proceedings before the SIU.

I.

Pursuant to CPLR § 6301, a preliminary injunction may be issued, ". . . in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff." However, preliminary injunctions which give the same relief as that expected to be obtained by final judgment, if granted at all, should only be granted when required by urgent situation or grave necessity, and then only on the clearest evidence. Russian Church of Our Lady of Kazan v. Dunkel, 34 A.D.2d 799, 311 N.Y.S.2d 533. See also, Shelborne Beach Club Inc. v. Hellman, 49 A.D.2d 741; Albini v. Solork Associates, 37 A.D.2d 835, 326 N.Y.S.2d 150, which require that:

"On a motion for a preliminary injunction, the movant must prove three things; (1) the likelihood of its ultimate success on the merits; (2) irreparable injury to it, absent the granting of a preliminary injunction; and (3) a balancing of the equities."

II.

The right to appear with an attorney at the various stages of proceedings before administrative agencies is less than fixed.

The Sixth Amendment to the United States Constitution which provides for assistance of counsel to the accused, "in all criminal prosecutions," is subject to the "criminal prosecution" limitation stated in the Amendment and is therefore inapplicable to civil administrative proceedings. Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307, reh. den. 364 U.S. 855, 81 S.Ct. 33, 5 L.Ed.2d 79; Jeung Bow v. United States, 228 F. 868 (2nd Ct., 1915); United States v. Steel, 238 F.Supp. 575 (1965 S.D.N.Y.); People ex rel. Combs v. LaVallee, 53 Misc.2d 281, 278 N.Y.S.2d 287, Rev'd on other grounds, 29 A.D.2d 128, 286 N.Y.S.2d 600, app. dismd. 22 N.Y.2d 857, 293 N.Y.S.2d 117, 239 N.E.2d 743.

Whether the Due Process clauses of the Fifth and Fourteenth Amendment to the United States Constitution and Article I, section 6 of the New York State Constitution (which guarantees the right to counsel, ". . . in any trial in any court whatever * * * as in civil actions . . ." CPLR § 321 regarding representation by counsel in civil cases provides: "A party * * * may prosecute or defend a civil action in person or by an attorney . . .") depends on a variety of factors, the most important of which are; (1) whether due process requires a hearing, and (2) whether the power exercised by the administrative agency is investigative or adjudicatory in nature.

It has been held, although not universally accepted, that where due process or statute requires a hearing before an administrative body, the right to employ counsel attaches. Goldberg v. Kelly, 397 U.S. 254, 270-271, 90 S.Ct. 1011, 1021-1022, 25 L.Ed.2d 287; Fusco v. Moses, 304 N.Y. 424, 433-435, 107 N.E.2d 581, 585-586; People ex rel. Mayor of the City of New York v. Nichols, 79 N.Y.

582; Goldwyn v. Allen, 54 Misc.2d 94, 97, 281 N.Y.S.2d 899, 903. cf. Madera v. Board of Ed., 386 F.2d 778 (2nd Cir., 1967), cert. den. 390 U.S. 1028, 88 S.Ct. 1416, 20 L.Ed.2d 284; Wasson v. Trowbridge, 382 F.2d 807 (2nd Cir., 1967.)

In Hannah v. Larche, supra, it was recognized that administrative agencies may exercise investigatory, as opposed to adjudicatory, powers; where an administrative agency makes binding determinations which directly affect the legal rights of individuals, the function is adjudicatory; but where the agency only...