Santiago v. Blum

75 A.D.2d 596, 426 N.Y.S.2d 819, 1980 N.Y. App. Div. LEXIS 11033

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1980
• Status: Published

Opinion

In an action for declaratory and injunctive relief involving plaintiffs’ attempt to require defendants to provide public assistance recipients with transcripts of fair hearings prior to the commencement of CPLR article 78 proceedings and to prohibit defendants from rendering fair hearing decisions in public assistance cases prior to hearing a tape of or reading verbatim transcripts of the hearings, plaintiffs appeal from an order of the Supreme Court, Nassau County, entered September 7, 1979, which (1) denied plaintiffs’ motion for a preliminary injunction and for court-ordered disclosure, (2) converted the action for declaratory and injunctive relief into a proceeding pursuant to CPLR article 78 to review the fair hearing decisions with respect to the two named plaintiffs, (3) directed defendants-respondents to furnish plaintiffs with transcripts of their respective fair hearings, and (4) permitted plaintiffs to file amended petitions in the CPLR article 78 proceedings. Order modified by (1) deleting therefrom the fifth decretal paragraph thereof and (2) adding a provision thereto annulling the determinations of the respondent State commissioner rendered adversely to plaintiffs, Santiago and Osburn, on December 13, 1978 and October 3, 1978, respectively. As so modified, order affirmed, without costs or disbursements, and the matter is remanded to the respondent State commissioner for further proceedings consistent herewith. Since we deem the order of Special Term to be one made in a declaratory judgment action, plaintiffs could appeal therefrom as of right (see CPLR 5701, subd [a]). However, it should be noted that even if we had considered the decision as one made in a proceeding pursuant to CPLR article 78, we would have granted the plaintiffs leave to appeal. Special Term properly converted the action for injunctive and declaratory relief into a proceeding pursuant to CPLR article 78. However, since all the necessary parties were before the court, Special Term erred in failing to address itself to the question of whether the State commissioner acted properly in rendering her determinations (CPLR 103, subd [c]). We have concluded from the record that full transcripts of the fair hearings were not made and that the State commissioner based her determinations, after the fair hearings, upon the hearing officers’ findings of fact in their official reports. The determinations were therefore improperly based on incomplete records (see Matter of Gutierrez v Blum, 73 AD2d 690; Ostrowski v City of New York, 601 F2d 629). Hopkins, J. P., Damiani, Titone and Mangano, JJ., concur.