Marks v. Pelcher

58 A.D.2d 812, 396 N.Y.S.2d 267, 1977 N.Y. App. Div. LEXIS 12980

Opinion

In the Matter of Dewey Thompson, Respondent, v Stephen Berger, as Commissioner of the New York State Department of Social Services, Appellant, et al., Respondent.

In a proceeding pursuant to CPLR article 78, inter alia, to review so much of a determination of the Commissioner of the New York State Department of Social Services, dated July 18, 1975 and made after a statutory fair hearing, as affirmed a determination of the local agency to reduce petitioner’s grant of aid to families with dependent children to recoup certain advance allowances, the State commissioner appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, dated March 8, 1976, as (1) denied his cross motion to dismiss the petition as untimely, (2) annulled the determination insofar as reviewed, (3) directed that the local agency cease "from recouping any moneys from petitioner’s grant of Aid to Families with Dependent Children”, and (4) ordered that petitioner be paid all moneys previously withheld from the grant. Judgment modified, on the law, by deleting the fourth and fifth decretal paragraphs thereof, and substituting therefor provisions that the matter shall be remanded to the State commissioner for further proceedings in accordance herewith. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. The determination under review reduced the grant of public assistance given to petitioner on behalf of his minor children in order to recoup advances for rent and utilities. No reduction in such benefits can occur without a finding that petitioner’s minor children do not need the assistance which they are entitled to receive (see Matter of Wright v Toia, 56 AD2d 633; Matter of Westby v Berger, 54 AD2d 911). The record does not show that the appellant State commissioner made such a finding. Latham, J. P., Rabin, Titone and O’Connor, JJ., concur.