Fore v. Toia

60 A.D.2d 913, 401 N.Y.S.2d 571, 1978 N.Y. App. Div. LEXIS 9970

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 1978
• 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 May 11, 1976 and made after a statutory fair hearing, which affirmed a determination of the local agency to reduce petitioner’s public assistance in order to recoup overpayments in the amount of public assistance furnished to petitioner during the time her husband was allegedly living in the household. Determination annulled, on the law, without costs or disbursements, petition granted, and respondents are directed to reinstate in full petitioner’s public assistance grant, and to pay back so much of the grant as has been withheld from her. The sole evidence submitted by the agency at the hearing was hearsay. Uncorroborated hearsay evidence does not constitute the substantial evidence upon which an administrative decision must be based (Matter of Ayala v Toia, 59 AD2d 739). In addition, there was no proof, hearsay or otherwise, as to petitioner’s husband’s willingness to support his family or as to the amount of his earnings (see Holmes v Wyman, 40 AD2d 50). The presumption that petitioner has undisclosed resources should have been substantiated by some evidence (see Matter of Stanco v Toia, 59 AD2d 946). In its absence, this determination cannot be upheld. Latham, J. P., Rabin, Gulotta and Margett, JJ., concur.