Deleo v. Kaladjian

215 A.D.2d 520, 626 N.Y.S.2d 555, 1995 N.Y. App. Div. LEXIS 5137

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1995
• Status: Published

Opinion

—In an action, inter alia, for a judgment declaring that the shelter allowances granted to the plaintiffs by the defendants violated the plaintiffs’ constitutional rights, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Westchester County (Cowhey, J.), dated October 13, 1993, which granted the defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action, and dismissed the complaint.

Ordered that the order and judgment is modified by adding thereto a provision declaring that the shelter allowance did not violate the plaintiffs’ rights; as so modified, the order and judgment is affirmed, without costs or disbursements.

We agree with the Supreme Court’s determination that the plaintiffs’ challenge to the New York State Constitution and the Social Services Law failed to state a cause of action for which relief could be granted. "Although a duty of assistance to the needy is recognized by New York State’s Constitution (Jiggetts v Grinker [75 NY2d 411], 416; Tucker v Toia, 43 NY2d 1, 7), there is no provision in the State Constitution or Social Services Law requiring that current shelter allowances be set at a particular level for recipients of home relief’ (Matter of Gautam v Perales, 179 AD2d 509, 511).

We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the defendants rather than the dismissal of the complaint (see, Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). Balletta, J. P., Copertino, Altman and Goldstein, JJ., concur.