Watt v. Wing

279 A.D.2d 475, 719 N.Y.S.2d 258, 2001 N.Y. App. Div. LEXIS 172

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 2001
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Commissioner of the New York State Office of Temporary and Disability Assistance, dated December 11, 1998, which, after a hearing, in effect, denied as untimely the petitioner’s request for a fair hearing to review a determination of the Suffolk County Department of Social Services dated June 10, 1998, discontinuing his food stamp benefits.

Adjudged that the determination is confirmed, and the proceeding is dismissed on the merits, without costs or disbursements.

The respondent Commissioner of the New York State Office of Temporary and Disability Assistance properly determined that he lacked jurisdiction to entertain the petitioner’s request for a fair hearing, and, in effect, denied as untimely the petitioner’s request for such a hearing. The petitioner did not make the request within the 90-day Statute of Limitations period, which is jurisdictional (see, 18 NYCRR 358-3.5 [b] [2]; Matter of Fieldston Lodge Nursing Home v DeBuono, 261 AD2d 543). Substantial evidence supports both the determination that the petitioner received the June 10, 1998, notice terminating his food stamp benefits but failed to request a fair hearing to review that determination within the 90-day period, and the determination not to toll the 90-day period because of the petitioner’s alleged mental illness. The petitioner testified that he received the notice and decided not to follow through with his application for food stamp benefits because he was seeking employment.

The petitioner’s remaining contention has not been considered, since it was raised for the first time in the reply brief. Bracken, Acting P. J., Altman, Krausman and Friedmann, JJ., concur.