Shook v. Lavine
| Decision Date | 31 October 1975 |
| Citation | 49 A.D.2d 238,374 N.Y.S.2d 187 |
| Parties | In the Matter of the Application of Barbara SHOOK, et al., Petitioners, v. Abe LAVINE, as Commissioner of the New York State Department of Social Services and James Reed, as Director of the Monroe County Department of Social Services, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Daniel F. Cashman, Monroe County Legal Assistance Corp., Rochester, for petitioners (John M. LeFevre, Rochester, of counsel).
Jean M. Coon, Asst. Sol. Gen., Louis J. Lefkowitz, Atty. Gen., Albany, for respondent Lavine (Paul O. Harrison, Rochester, of counsel).
Frank P. Celona, Rochester, for respondent Reed.
Before MARSH, P.J., and CARDAMONE, SIMONS, GOLDMAN and DEL VECCHIO, JJ.
OPINION
Since petitioners have not raised the issue of whether the administrative determination is, on the entire record of the hearing, supported by substantial evidence, Special Term should have disposed of the legal issues raised in this proceeding (CPLR 7804(g), 7803, subd. 4). However, even though transfer was improper, as the papers before this court are sufficient to enable the case to be disposed of, we should do so (CPLR 7804(g), Matter of Dumbleton v. Reed, 49 A.D.2d 687, 371 N.Y.S.2d 521, 1975).
As to the constitutional questions raised by petitioners, the court may treat this proceeding as an action for declaratory judgment, as long as it has jurisdiction over the parties, and address the constitutional issues (Matter of Kovarsky v. Housing & Development Admin., 31 N.Y.2d 184, 192, 335 N.Y.S.2d 383, 388, 286 N.E.2d 882, 885).
Petitioners were denied Aid to Families with Dependent Children (AFDC) assistance solely because they transferred property without consideration, presumptively for the purpose of obtaining public assistance. Social Services Law (SSL) 104--a provides:
'For the purposes of the provisions of this chapter disqualifying a person from eligibility for a category of public assistance or care by reason of his voluntary transfer of property, a transfer of property made within one year from the date of the person's application for such assistance shall be presumed to have been made for the purpose of qualifying for such assistance.'
18 NYCRR 352.23 provides
Regulation 18 NYCRR 352.15(d) instructs the Departments of Social Services to ascertain the nonessential property holdings of applicants as a means for reducing need for public funds.
Petitioners contend, correctly, that the above provisions are inapplicable to determinations of eligibility for AFDC assistance. Section 104--a is not self-executing, but is to be used as a standard only in conjunction with other '* * * provisions of (the Social Services Law) disqualifying a person from eligibility for a category of public assistance or care by reason of his voluntary transfer of property * * *'. While Former Title 7 (Assistance to the Blind), Former Title 8 (Aid to the Disabled) and Title 11 (Medical Assistance) contain express limitations on 'eligibility' to those who have not made a voluntary transfer of property for purposes of qualifying for such aid, (SSL (former) §§ 285, subd. 5; 302, subd. 7; SSL § 366, subd. 1(e)), there is no comparable provision in the 'Eligibility' section (SSL § 349) of Title 10 of Article 5 (Aid to Dependent Children) which would serve to invoke § 104--a. This omission, in light of express provisions elsewhere in Article 5, appears to have been intended by the Legislature. The Legislature has provided specific sanctions for welfare fraud.
Regulation 18 NYCRR 352.23, as a general guide, is also ineffective to serve as a basis for denying aid. Regulation 18 NYCRR 352.15(d) is relevant only insofar as it serves to show the current actual need of recipients or applicants based on presently held assets. In the cases presented here, past legal ownership of assets was used as the basis for later denying assistance.
While the construction of the statute by the administrative agency charged with its enforcement is not binding on the courts, it should be accorded some weight and it should be noted that the Acting Commissioner of the Department of Social Services appears to have reversed the position taken by the respondent and interprets the law to prohibit local Social Services Departments from denying public assistance in AFDC cases upon the resource transfer rationale. This is apparent from a recent decision relating to an application under AFDC that appears to reverse the stand of former Commissioner Lavine.
'There is no provision in the Social Services Law or the regulations of the State Department of Social Services which would authorize the agency to deny assistance on the grounds that an applicant had made a transfer of property in order to be eligible for such assistance. * * *' (In the Matter of the Appeal of Deborah German from a determination by the Monroe County Department of Social Services (hereinafter called the agency)--decision after fair hearing, dated July 8, 1975).
Were section 104--a to be read as authority for denying AFDC assistance it would meet with valid constitutional objections. Funds for state AFDC programs are largely federally supplied. To be eligible for federal funding, states must comply with subchapter IV of the Federal Social Security Act, 42 U.S.C.A. § 601 Et seq. Regulation 45 C.F.R. 233.20(a)(3)(ii)(c) provides that 'only currently available resources will be considered' in determining the need for AFDC assistance. This is a 'Requirement for State Plans' (45 C.F.R. 233.20(a)).
Respondents have not contested the need or the dependency of the families and children involved.
In King v. Smith (392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118) the Supreme Court struck down an Alabama statutory provision as violative of the Equal Protection clause of the Constitution because it denied AFDC assistance to children living in a home with a non-parent male, i.e., a 'substitute' father. The Federal Social Security Act defines as 'dependent' and thus eligible for AFDC assistance, a child deprived of 'parental' support. The court expressly declined to reach the issue as to whether the state law violated the Supremacy Clause as well, but it did note that the Alabama provision was invalid because it defined 'parent' in a manner inconsistent with that of the Federal Social Security Act (392 U.S. at 333, 88 S.Ct. 2128).
Subsequently in Townsend v. Swank (404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448) the court invalidated an Illinois statute which made 18 to 20 year olds attending colleges or universities ineligible for AFDC assistance. The court held that
'. . . a state eligibility standard that excludes persons eligible for assistance, under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause' (404 U.S. at 286, 92 S.Ct. at 505).
Federal law (42 U.S.C., § 602(a)(10)) requires of participating states that 'aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals'. "Eligibility', so defined, must be measured by federal standards' (Carleson v. Remillard, 406 U.S. 598, 600, 92 S.Ct. 1932, 1934, 32 L.Ed.2d 352, citing King v. Smith, (supra)). The states may not vary this federal standard without congressional authorization (Carleson v. Remillard, supra at 601, 92 S.Ct. 1932). Leeway has been given to the states insofar as...
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