Mc Phaul v. Toia

56 A.D.2d 630, 391 N.Y.S.2d 690, 1977 N.Y. App. Div. LEXIS 10736

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 1977
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent State commissioner, dated April 30, 1976 and made after a statutory fair hearing, which affirmed a determination of the respondent Commissioner of the Nassau County Department of Social Services terminating a grant of aid to dependent children to the petitioner and her children. Determination annulled, on the law, without costs or disbursements, and matter remitted to the State Department of Social Services for a de novo hearing and a new determination. The grant in question was terminated on the ground that the petitioner was the registered owner of a 1970 Plymouth automobile, and had declined to utilize its value toward the support of herself and her minor children. The car was transferred to her godmother for no legal consideration. The license plates and registration were subsequently surrendered to the Bureau of Motor Vehicles. It has not been established that the automobile is currently a valuable asset which is in fact available to the petitioner so that its sale would result in a cash surplus which could be applied to her needs (see Matter of Knowles v Lavine, 34 NY2d 721, 722; Matter of Wilson v Berger, 52 AD2d 586). Moreover, there is no indication in this record of a finding of lack of need; the petitioner’s children therefore may not be deprived of the assistance which they are entitled to receive (see Matter of Zabala v Lavine, 48 AD2d 880, 881; Matter of Ryan v New York State Dept. of Social Servs., 40 AD2d 867). Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.