Regan v. D'Elia

82 A.D.2d 890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1981
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent State commissioner, dated October 18, 1979 and made after a statutory fair hearing, which affirmed a determination of the local agency to discontinue petitioner’s grant of public assistance on behalf of herself and her two minor children on the ground that she had failed to disclose information relating to her employment. Petition granted, determination annulled, on the law, without costs or disbursements, and respondents are directed to restore the benefits in question. Petitioner’s alleged misconduct may not serve to deprive her minor children of the assistance they are entitled to receive, without a prior finding of lack of need on their part (see Matter of Gunn v Blum, 48 NY2d 58; Matter of Gutierrez v Blum, 73 AD2d 690). The notice of discontinuance of assistance issued by respondents did not conform to the requirements of 45 CFR 205.10 (a) (4) (i) (B) insofar as it failed to state.“the specific regulations supporting [its] action”. The notice was, therefore, ineffective (see Matter of Foster v D’Elia, 72 AD2d 813). Although 18 NYCRR 358.9 requires that an investigation be conducted in order'to verify the status of a public assistance recipient prior to the issuance of a discontinuance or reduction notice, the record contains no evidence of compliance therewith. We thus find that there is insufficient evidence in the record as a whole to support the determination that petitioner willfully withheld information from the local agency regarding the receipt of income from employment (see Matter of De Pietto v Toia, 67 AD2d 663). Damiani, J. P., Gibbons, Cohalan and O’Connor, JJ., concur.