Uhrovick v. Lavine
| Decision Date | 28 February 1974 |
| Citation | 43 A.D.2d 481,352 N.Y.S.2d 529 |
| Parties | Claim of Frances UHROVICK, Respondent-Appellant, v. Abe LAVINE, as Commissioner of Social Services of the State of New York, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., Syracuse (Sidney L. Grossman, Syracuse, and Ruth Kessler Toch, Albany, of counsel), for appellant-respondent.
Herbert L. Warren, Ithaca (John J. Capowski, Rochester, of counsel), for respondent-appellant.
Before HERLIHY, P.J., and COOKE, SWEENEY, KANE and MAIN, JJ.
These are cross appeals from a judgment of the Supreme Court at Special Term, entered July 12, 1973 in Tompkins County, which annulled the respondent Commissioner's action in affirming the discontinuance of assistance to petitioner and her children by the Tompkins County Department of Social Services and denied petitioner's request for retroactive benefits withheld because of said discontinuance.
Included in petitioner's household on August 11, 1972 were herself, her second husband, Mr. Stephen Uhrovick, Sr., one child by her second husband, Stephen Uhrovick, Jr., and two children of a previous marriage, Pamela and Darlene Brotherton. The Tompkins County Social Services Department informed petitioner on that date that, effective September 1, 1972, aid to her children as authorized by Title 10 of article 5 of the Social Services Law would be terminated since her husband was then resident in her home and, therefore, the presumption under Social Service regulations (18 NYCRR 352.31(a)(2)) that his income was available for the support of his stepchildren should be applied. Aid was continued until September 12, 1972, however, when the Commissioner found, after a hearing, that assistance had been properly discontinued and affirmed the Department's decision. Neither petitioner nor her children received any benefits from that time until April 1, 1973, at which time petitioner was able to establish that Mr. Uhrovick was no longer a member of her household.
On January 23, 1973, the instant proceeding was commenced, pursuant to CPLR article 78, to annul the determination of the Department of Social Services and to direct that petitioner receive the retroactive benefits which had been withheld. Special Term, finding that 18 NYCRR 352.31(a)(2) was contrary to a Federal regulation of the Department of Health, Education and Welfare (45 CFR 233.90), under which this joint federal-state program was administered, granted so much of the petition as sought an annulment of the termination of benefits, but denied the request for retroactive benefits.
We agree with Special Term that there is a conflict between the State and Federal regulations. According to 45 CFR 233.90, there must be a state law of general applicability requiring 'stepparents to support stepchildren to the same extent that natural or adoptive parents are required to support their children' before Mr. Uhrovick's income becomes relevant to the present situation, whereas 18 NYCRR 352.31(a)(2) permits the assumption that his income is available for the support of his stepchildren merely because he resides with them. As is readily apparent, this assumption is unwarranted under the Federal rule, absent the requisite statute, and New York has no such statute.
Both subdivision 1 of section 101 of the Social Services Law and section 415 of the Family Court Act are inadequate as they require stepparent support equivalent to that of a natural or adoptive parent only where a minor child is without means and liable to become a public charge. A similar Indiana law has been held to be not generally applicable and, hence, in conflict with Federal regulations (Gaither v. Sterrett, 346 F.Supp. 1095 (N.D.Ind.1972), affd., 409 U.S. 1070, 93 S.Ct. 688, 34 L.Ed.2d 660) and, likewise, the Department of Health, Education and Welfare has interpreted the phrase ...
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Holley v. Lavine
...the recognition by the New York courts of the propriety of retroactive relief in welfare benefits cases. See Uhrovick v. Lavine, 43 A.D.2d 481, 484, 352 N.Y.S.2d 529, 532 (3d Dept.), aff'd, 35 N.Y.2d 892, 364 N.Y.S.2d 890, 324 N.E.2d 360 (1974) ("to do otherwise would permit a state to viol......
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Archibald v. Whaland
...Slochowsky, 73 Misc.2d 563, 342 N.Y.S.2d 525 (1973). See Jennings v. Lavine, 79 Misc.2d 176, 359 N.Y.S.2d 473 (1974); Uhrovick v. Lavine, 43 A.D.2d 481, 352 N.Y.S.2d 529, aff'd 35 N.Y.2d 892, 364 N.Y.S.2d 890, 324 N.E.2d 360 In Slochowsky, the court rejected the contention that the Uniform ......
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Burton v. Department of Health and Social Services of State of Wis.
...N.Y.S.2d 361, 357 N.E.2d 1016 (1976) (retroactive to date of initial incorrect action without discussion). See also Uhrovick v. Lavine, 43 A.D.2d 481, 352 N.Y.S.2d 529, 532, aff'd, 35 N.Y.2d 892, 364 N.Y.S.2d 890, 324 N.E.2d 360 (1974) (retroactive benefits based solely on state regulations......
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Archibald v. Whaland
...See Gaither v. Sterrett, 315 F.Supp. 990 (N.D.Ind.), aff'd mem., 400 U.S. 922, 91 S.Ct. 187, 27 L.Ed.2d 182 (1970); Uhrovick v. Lavine, 43 A.D.2d 481, 352 N.Y.S.2d 529, aff'd., 35 N.Y.2d 892, 364 N.Y.S.2d 890, 324 N.E.2d 360 (1974). In one case a stepparent obligation limited to children un......