Howard v. Wyman

36 A.D.2d 713, 319 N.Y.S.2d 754, 1971 N.Y. App. Div. LEXIS 4428

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1971
• Status: Published

Opinion

Concur — Stevens, P. J., Markewich, Nunez and Kupferman, JJ.; McGivern, J., dissents in the following memorandum: I conclude the word “ catastrophe ” is limited in its application to the unforeseeable forces of nature, and does not include a burglary. I find no valid basis for interfering with the construction given the pertinent statute and regulation by the officers and agency charged with its administration. (Udall v. Tollman, 380 U. S. 1,16; Matter of Agosto v. Wyman, 35 A D 2d 1080.) Particularly, in view of the legislative history which led to the enactment of the Simplified Payment System in 1968, and the ultimate establishment of a system of flat grants to eliminate previous inequities in the treatment of recipients of public assistance. (See statement of legislative findings and purpose of L. 1969, ch. 184, § 1, eft. March 30, 1969.) Moreover, the acts of the Commissioner, in his expertise, of providing alternate aids, are not lacking in rationality so as to be arbitrary or capricious. That being manifest, no warrant exists for judicial intervention. (Matter of Colton v. Berman, 21 N Y 2d 322, 334.) I would reverse and dismiss the petition. I am constrained to conclude the word “catastrophe” is limited in its application to the unforeseeable forces of nature, and does not include a burglary. It is unfortunate that burglaries are endemic to many sections of the city and occur in great numbers. However, the conclusion of the Commissioner of the Department of Social Services that misfortune of this type, although it can cause great loss to a victim, may not be labeled as a “ catastrophe ”, cannot be said to be arbitrary or capricious. I find no valid basis for interfering with the construction given the pertinent statute and regulation by the officers and agency charged with its administration. (Udall v. Tollman, 380 U. S. 1, 16; Matter of Agosto v. Wyman, 35 A D 2d 1080.) Particularly, in view of the legislative history which led to the enactment of the Simplified Payment System in 1968, and the ultimate establishment of a system of flat grants to eliminate previous inequities in the treatment of recipients of public assistance. (See statement of legislative findings and purpose of L. 1969, ch. 184, § 1, eff. March 30, 1969.) No warrant exists for judicial intervention. (Matter of Colton v. Berman, 21 N Y 2d 322, 334.) In reaching this conclusion I am mindful of the fact that petitioner has alternative avenues for relief from the burden of her loss, for which application could be made. In simple terms, the Department of Social Services has not unjustifiably taken the position that it need not remedy petitioner’s loss by burglary in the manner chosen or sought by petitioner. I would reverse and dismiss the petition.