Smith v. Berlin, Index No. 400903/2010
| Decision Date | 15 August 2013 |
| Docket Number | Index No. 400903/2010 |
| Citation | 2013 NY Slip Op 31911 |
| Parties | In the Matter of the Application of QUANISHA SMITH, Petitioner, For a Judgment Pursuant to Article 78 and Section 3001 of the Civil Practice Law and Rules v. ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources Administration, and BQNY PROPERTIES, LLC, Respondents |
| Court | New York Supreme Court |
For Petitioner and Intervenor
Lester Helfman Esq.
Legal Aid Society
Susan Jacquemot Esq. and Matthew B. Moses Esq.
Kramer Levin Naftalis & Frankel, LLP
For Respondent Doar
Stephanie A. Feinberg, Special Assistant Corporation Counsel
New York City Human Resources Administration
For Respondent Berlin
Domenic Turziano, Assistant Attorney General The numbers of New York City residents dependent on public assistance and food stamps for sustenance has risen steadily during the recent economic crisis. The New York City Human Resources Administration (HRA) reduces or discontinues this needed assistance, however, as a penalty when assistance recipients capable of work are charged with failing to comply with requirements that they train for, seek, and maintain employment. N.Y. Soc. Serv. Law (SSL) §§ 335(3), 335-a(4), 335-b(5)(a), 336, 342; 18 N.Y.C.R.R. §§ 385.2(f), 385.6(a), 385.7(a), 385.9(a), 385.12. Recipients are entitled to appeal these penalties to the New York State Office of Temporary and Disability Assistance (OTDA), which affirms or reverses the penalty.
Respondent Commissioners of these two agencies reduced petitioner Quanisha Smith's public assistance as a punitive sanction for her alleged failure to attend a mandatory employment appointment. SSL § 331(1); 18 N.Y.C.C.R. § 385.2. Petitioner received respondent Commissioner of HRA's Conciliation Notification informing her of her noncompliance and of a conciliation conference to explain why she did not report to or cooperate with the mandatory appointment. After the conciliation process was unsuccessful, she received City respondent's Notice of Decision that her public assistance would be reduced because she "willfully and without a good reason failed or refused to comply with the requirement to show up for the employment or workactivity assignment." V. Pet./Compl. Ex. F, at 2.
Petitioner claims the Conciliation Notification and the Notice of Decision issued by City respondent violate SSL §§ 22(12)(f) and (g) and 341(1)(a) and (b), 18 N.Y.C.R.R. § 358-3.3, 7 C.F.R. § 273.13(a)(2), and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. She claims the Conciliation Notification violates SSL § 341(1) (a), because the notice fails to specify the instance of her noncompliance or the necessary actions to avoid a reduction of public assistance and lacks examples of evidence to establish an exemption from work requirements or that her noncompliance was unwillful or with good cause, which would avoid a sanction. She claims the Notice of Decision violates SSL § 341(1)(b) because the notice similarly fails to specify how or why her noncompliance with work requirements was willful, how or why it was without good cause, and the necessary actions to avoid a reduction of assistance, as well as how she did not comply.
Petitioner further claims this omitted information regarding the substance of evidence a public assistance recipient must present to avoid a punitive sanction compromises her rights to adequate notice provided by SSL § 341(1) (a) and (b) , 18 N.Y.C.R.R. § 358-3.3, 7 C.F.R. § 273.13(a)(2), and due process, to enable her to challenge the Notice of Decision at an administrative hearing. Finally, she claims respondent Executive Deputy Commissioner of the State OTDA conducted the administrative hearing she attended in violation of lawfulprocedure. C.P.L.R. § 7803(3). The Administrative Law Judge (ALJ) presiding at the hearing failed to develop the record, by eliciting testimony and documents or adjourning the hearing for that purpose, and assess whether the notices issued complied with all applicable laws.
After petitioner commenced this proceeding, City respondent restored all the reductions of petitioner's public assistance. City respondent also revised the Conciliation Notification and claims it now complies with SSL § 341(1)(a).
City respondent discontinued proposed intervening petitioner Anthony Colavecchio's public assistance as a punitive sanction for his alleged failure to attend a mandatory employment appointment. Colavecchio received the same Conciliation Notification, except its dates and times, as petitioner Smith, informing him of his noncompliance with mandatory work requirements. After an unsuccessful conciliation conference, Colavecchio received a Notice of Decision informing him of City respondent's determination to discontinue Colavecchio's public assistance because Colavecchio "willfully and without a good reason failed or refused to comply with the requirement to participate in the Job Search program." 2d Am. V. Class Action Pet./Compl. Ex. M, at 1.
Colavecchio seeks to challenge the adequacy of the Conciliation Notification and Notice of Decision on the same grounds as petitioner Smith. Colavecchio similarly claims thatthe deficient notices impeded his preparation and presentation of defenses at an upcoming administrative hearing.
Upon petitioner's and Colavecchio's motion seeking his intervention as a petitioner and class certification, and before his scheduled hearing, City respondent withdrew the determination to discontinue Colavecchio's public assistance and fully restored his discontinued assistance.
Petitioner Smith and intervenor Colavecchio move for:
Intervenor Colavecchio has obtained the relief he sought annulling the determination to discontinue his public assistance, restoring the discontinued assistance, and expunging the infraction from his record.
Ultimately, petitioner Smith, intervenor Colavecchio, and the class seek a declaratory judgment that the Conciliation Notification violates SSL § 341(1)(a), and the Notice of Decision violates SSL §§ 22(12)(f) and (g), 341(1)(b), 18 N.Y.C.R.R. § 358-3.3, 7 C.F.R. § 273.13(a)(2), and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. C.P.L.R. § 3001. These petitioners claim City respondent's revised Conciliation Notification does not resolve the notice's noncompliance with SSL § 341(1)(a). Petitioners seek a companion permanent injunction against State and City respondents imposing punitive sanctions on any class members for violation of work requirements, until the notices comply with the governing laws and respondents provide for a meaningful conciliation process. The injunctive relief sought includes removing punitive sanctions imposed on class members and restoring assistance lost due to unlawful sanctions.
City respondent has moved to dismiss the original petition as moot, C.P.L.R. §§ 3211(a)(7), 7804(f), and maintains that, once dismissed, no proceeding will remain in which to intervene or to seek class certification, and no petition will remain to amend. C.P.L.R. §§ 902, 1013, 3025(b). Although State respondent answered the original petition, State respondent alsomaintains that petitioner Smith's claims are moot and now cross-moves to dismiss Colavecchio's intervening claims.
SMITH AND INTERVENOR COLAVECCHIO IS NOT MOOT.
Both respondents oppose Colavecchio's intervention on the ground that Colavecchio no longer maintains an interest in the proceeding. C.P.L.R. § 3211(a)(7). Respondents claim that the revision of the Conciliation Notification and restoration of both Colavecchio's and Smith's public assistance rendered his claim as well as hers moot.
City respondent's withdrawal of punitive sanctions and restoration of petitioner Smith's and intervenor Colavecchio's assistance do not negate their challenge to the adequacy of the Conciliation Notification and the Notice of Decision, nor do these voluntary actions divest Smith and Colavecchio of an interest in the proceeding. Moreover, even if any issue that they continue to present is moot, an exception to the mootness doctrine, which prohibits advisory opinions, permits a decision on an issue that (1) likely will recur, either between the parties or between a party and other members of the public; (2) is substantial and novel; and (3) typically will evade judicial review. Coleman v. Daines, 19 N.Y.3d 1087, 1090 (2012); City of New York v. Maul, 14 N.Y.3d 499, 507 (2010).
As current recipients of public assistance, both petitioner Smith and intervenor Colavecchio remain subjected to themandatory work requirements and to the risk of future reduction or discontinuance of assistance...
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