Shvartszayd v. Dowling

239 A.D.2d 104, 656 N.Y.S.2d 631, 1997 N.Y. App. Div. LEXIS 4495

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 1997
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Carol Arber, J.), entered August 25, 1995, which, insofar as appealed from, granted petitioner’s application pursuant to CPLR article 86 for attorneys’ fees against respondent State Department of Social Services for failure to enforce respondent City Department of Social Services’ compliance with two fair hearing decisions, unanimously affirmed, without costs.

The State’s failure to enforce the City’s compliance with the fair hearing decisions before petitioner’s institution of the CPLR article 78 proceeding was not substantially justified. Concededly, there was no justification for the City’s initial failure, first, to award petitioner the increased benefits she was entitled under 18 NYCRR 352.30 (e) (1) and State Department of Social Services Administrative Directive 94-10, and second, to make that award retroactive to the effective date of that regulation and directive—errors that were rectified before the return date of the article 78 proceeding. Twice before instituting the article 78 proceeding, petitioner notified the State in writing of the City’s noncompliance, and it was not a reasonable response to this notice for the State simply to rely upon a report from the City that appropriate compliance action had been taken without conducting any independent investigation of its own. We have considered the State’s other arguments and find them to be without merit. Concur—Murphy, P. J., Ellerin, Nardelli, Williams and Andrias, JJ.