Breitfeller v. D'Elia

99 A.D.2d 756, 471 N.Y.S.2d 663, 1984 N.Y. App. Div. LEXIS 17121

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 1984
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Social Services, dated February 5,1982 and made after a statutory fair hearing, which affirmed a determination of the local agency denying the petitioner’s application for medical assistance on behalf of herself and her two minor children, on the ground that she failed to submit requested documentation in a timely fashion. Petition granted to the extent that the determination is annulled, on the law, without costs or disbursements, and the matter is remitted to respondent State commissioner for a de novo fair hearing at which the petitioner may contest, on the merits, the local agency’s denial of her application for medical assistance. On March 30,1981, respondent Nassau County Department of Social Services denied petitioner’s application for medical assistance. The notice of denial did not advise her of the availability of community legal services. Such a notice is violative of petitioner’s right to due process of law (Matter ofCapek v Blum, 76 AD2d 924). Whereas due process does not require that needy applicants at social services hearings be assigned counsel, it does require that applicants be made aware that community legal services are available (Matter of Brown v Lavine, 37 NY2d 317; Matter of Capek v Blum, supra). As a result of this omission, petitioner appeared pro se at the fair hearing. Therefore, a new fair hearing is required. Gibbons, J. P., Bracken, Brown and Niehoff, JJ., concur.