Matthews v. Lavine

51 A.D.2d 643, 377 N.Y.S.2d 838, 1976 N.Y. App. Div. LEXIS 10985

Opinion

Judgment unanimously affirmed, without costs. Memorandum: Petitioner has received a supplemental AFDC assistance grant since 1970. Her grant was reduced by the local department because of a finding, confirmed by respondent Lavine after a fair hearing, that petitioner violated 18 NYCRR 384.4 by willfully withholding information concerning tax refunds due on her 1972 and 1973 taxes. The certified tax returns introduced in evidence showed a claimed refund of $206.94 for 1972 and a claimed refund of $170.46 for 1973. It was stipulated by petitioner that the tax returns received from the Buffalo office of the Internal Revenue Service were photocopies of her tax returns for the years in question. The caseworker handling petitioner’s file testified also that the department had not been notified by petitioner of the refunds in the several months since the date the tax returns were filed. Petitioner did not testify at the fair hearing and respondent Lavine drew the adverse inference from that failure to testify that she had received the refunds and had willfully withheld information of them from the department. He affirmed the reduction in benefits. Without basing our decision upon any negative inference arising because of petitioner’s failure to testify, we find substantial evidence in the record to support respondent’s determination and, therefore, we affirm it. (Appeal from judgment of Onondaga Supreme Court dismissing petition in article 78 proceeding.) Present—Marsh, P. J., Moule, Cardamone, Simons and Witmer, JJ.