Kross v. Perales

156 A.D.2d 451, 548 N.Y.S.2d 912, 1989 N.Y. App. Div. LEXIS 15653

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1989
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to compel the respondent William J. Grinker, the Commissioner of the New York City Department of Social Services, to comply with a directive of the respondent Cesar A. Perales, the Commissioner of the New York State Department of Social Services, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Rader, J.), dated December 18, 1987, which denied his application for attorney’s fees pursuant to 42 USC § 1988.

Ordered that the order and judgment is affirmed, without costs or disbursements.

The petitioner commenced this proceeding to compel the New York City Department of Social Services (hereinafter NYCDSS) to comply with the directives set forth in a "Decision After Fair Hearing,” which directed the respondent NYCDSS to reinstate petitioner’s medical assistance and food stamp benefits. Subsequently, the NYCDSS did so. The petitioner now seeks attorney’s fees pursuant to 42 USC § 1988 on the ground that he prevailed on his claim to restore the benefits, and the NYCDSS delayed in complying with the directive ordering restoration of the benefits.

We find that under the facts of this case, the petitioner has not established that his claim, which concerns the administrative application of State statutes and regulations (see, Social Services Law §§ 363, 22 [9] [a]; § 106-b; 18 NYCRR 358.22), is a bona fide civil rights claim pursuant to 42 USC § 1983 so as to warrant an award of attorney’s fees (see, Matter of Rozier v Perales, 149 AD2d 710; see also, Matter of Zellweger v New York State Dept, of Social Servs., 74 NY2d 404). Additionally, the petitioner has failed to show that his claim was substantial enough to satisfy the threshold requirement under Mine Workers v Gibbs (383 US 715, 725; see also, Matter of Johnson v Blum, 58 NY2d 454, 458, n 2; Matter of Gelin v Perales, 149 AD2d 593). Mangano, J. P., Lawrence, Kooper and Rosenblatt, JJ., concur.