Vicari v. Wing

• Decision Date: 19 November 1997
• Citation: 665 N.Y.S.2d 209,244 A.D.2d 974
• Parties: , 1997 N.Y. Slip Op. 9854 Matter of Frederick VICARI, Petitioner, v. Brian WING, Acting Commissioner, New York State Department of Social Services, and Robert J. Stone, Commissioner, Onondaga County Department of Social Services, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 209

665 N.Y.S.2d 209

244 A.D.2d 974, 1997 N.Y. Slip Op. 9854

Matter of Frederick VICARI, Petitioner, v. Brian WING, Acting Commissioner, New York State Department of Social Services, and Robert J. Stone Commissioner, Onondaga County Department of Social Services, Respondents.

Supreme Court, Appellate Division Fourth Department.

Nov. 19, 1997.

Legal Serv. of Central N.Y., Inc. by Maureen Kieffer, Syracuse, for Petitioner.

Dennis Vacco, Attorney General by Peter Crary (Roger B. Williams, of counsel), Syracuse, for Respondent.

Onondaga County DSS (Zachary L. Karmen) by Jon Gerber, Syracuse, for Respondent Stone.

Before PINE, J.P., and LAWTON, WISNER, BALIO and FALLON, JJ.

MEMORANDUM:

We conclude that the Acting Commissioner, New York State Department of Social Services (respondent), properly upheld the discontinuance of petitioner's home relief, food stamps and medical assistance benefits by the Onondaga County Department of Social Services (Onondaga County DSS). Pursuant to regulation, employable recipients of home relief, such as petitioner (see, 18 NYCRR 385.1[h] ), may have their benefits discontinued if they willfully and without good cause fail to comply with the requirements of the Job Opportunities and Basic Skills Training Program (JOBS) (18 NYCRR 385.19[c]; see, 18 NYCRR 385.2). There is no willful failure or refusal to comply with the program without good cause "if the evidence shows that * * * temporary and verified illness incapacitated the * * * recipient" (18 NYCRR 385.19[d][2] [xiii] ).

Under the JOBS program, Onondaga County DSS required petitioner to attend a 35-hour per week, open-ended, self-guided computer software training program. Although petitioner submitted evidence, in the form of letters from his treating physician, prior to the fair hearing that he suffered from a temporary and verified injury to his left arm, the evidence failed to prove that the injury "incapacitated" petitioner from attending or continuing the required program (see, Matter of Jackson v. D'Elia, 86 A.D.2d 669, 670, 446 N.Y.S.2d 387; Matter of Van Leuvan v. Blum, 73 A.D.2d 1003, 1004, 424 N.Y.S.2d 48). The first letter indicated that petitioner was not disabled from working. The second letter, which was requested by petitioner, stated that it was appropriate that petitioner was "kept out of work" for approximately three weeks after the injury. The second letter was based on petitioner's subjective representations to the physician of the amount of pain petitioner had suffered during that time and further reflected the misleading statements by petitioner to the physician that his JOBS program required data input or other physical tasks.

The fact that respondent interpreted the letters from petitioner's physician differently from petitioner does not render the decision after the fair hearing either arbitrary or capricious. Such interpretations by an agency, if rational, may not be set aside by this Court (see, Matter of Pell v. Board of Educ., supra, at 231, 356 N.Y.S.2d 833, 313 N.E.2d 321).

We further conclude that substantial evidence supports respondent's determination that petitioner did not make a good faith effort to attend the program for a nine-day period, although h...