Selby v. Berlin

• Decision Date: 19 June 2013
• Citation: 2013 N.Y. Slip Op. 04612,107 A.D.3d 902,967 N.Y.S.2d 413
• Parties: In the Matter of Duane SELBY, petitioner, v. Elizabeth BERLIN, etc., respondent.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 902
967 N.Y.S.2d 413
2013 N.Y. Slip Op. 04612

In the Matter of Duane SELBY, petitioner,
v.
Elizabeth BERLIN, etc., respondent.

Supreme Court, Appellate Division, Second Department, New York.

June 19, 2013.

Nathan Treadwell, Yonkers, N.Y., for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing and David Lawrence III of counsel), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and SYLVIA HINDS–RADIX, JJ.

[107 A.D.3d 902]Proceeding pursuant to CPLR article 78 to review a determination of the New York State Office of Temporary and Disability Assistance dated December 16, 2011, which, after a fair hearing, confirmed a determination of the Commissioner of the Westchester County Department of Social

[967 N.Y.S.2d 414]

Services, discontinuing the petitioner's public assistance grant for a period of 45 days.

ADJUDGED that the determination of the New York State Office of Temporary and Disability Assistance dated December 16, 2011, is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.

In 2011, the Westchester County Department of Social Services (hereinafter the DSS) notified the petitioner that it intended to discontinue its provision of public assistance benefits to him based on his failure, inter alia, to complete a substance abuse treatment program to which it had referred him. During a fair hearing, the petitioner testified, in effect, that he had good cause for not completing the substance abuse treatment program due to a medical condition which prevented him from walking to and from the program. He also testified that he had requested transportation assistance from the DSS and that the DSS had refused to provide it. A DSS employee testified that, inter alia, the petitioner had not made any effort to obtain transportation assistance, that he had not asked the witness, the housing caseworker, or the petitioner's health maintenance organization (hereinafter HMO) for help, and that the HMO would have paid for the petitioner's transportation to and from the substance abuse treatment program if he had asked. Following the fair hearing, the respondent, the New York State Office of Temporary and Disability Assistance (hereinafter the OTDA), affirmed the DSS's determination, based on its findings that, inter alia, the petitioner's testimony that he had sought transportation assistance was uncorroborated and not credible and...