Staiger v. Kirby

81 A.D.2d 642, 440 N.Y.S.2d 558, 1981 N.Y. App. Div. LEXIS 11157

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1981
• Status: Published

Opinion

— Proceeding pursuant to CPLR article 78 to review so much of a determination of the respondent State Commissioner of Social Services, dated July 17, 1980 and made after a statutory fair hearing, as affirmed determinations of the local agency (1) to recoup prior overpayments at the rate of 15% per month, (2) to eliminate a shelter allowance, and (3) refusing to grant an amount to cover mortgage arrears. Petition granted to the extent that the determination is modified, on the law, by deleting the provisions affirming the elimination of a shelter allowance and the refusal to grant an amount to cover mortgage arrears. As so modified, determination confirmed insofar as reviewed, without costs or disbursements, and the matter is remitted to the local agency for further proceedings in accordance herewith. Upon review of the record, we find there is substantial evidence to support the determination that recoupment would not result in any undue hardship. The matter, however, must be remitted to the local agency for further proceedings. The agency’s discontinuance of petitioner’s shelter allowance and its refusal to grant to her an amount to cover payments for mortgage arrearages were arbitrary and capricious. In making its determination whether to conserve petitioner’s real property, the agency failed to consider relevant factors set forth in 18 NYCRR 352.27 (b). Moreover, the finding that the cost of relocation would have been exceeded by the mortgage arrearages is not supported by substantial evidence in the record. Damiani, J.P., Titone, Mangano and Rabin, JJ., concur.