Westby v. Berger

54 A.D.2d 911, 387 N.Y.S.2d 988, 1976 N.Y. App. Div. LEXIS 14754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1976
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Social Services, dated March 12, 1976 and made after a statutory fair hearing, which affirmed a determination of the respondent Commissioner of the New York City Department of Social Services to reduce petitioner’s grant of aid to dependent children, in order to recoup overpayments caused by petitioner’s willful failure to report unemployment insurance benefits received by her. Petition granted to the extent that the determination of the respondent State commissioner is modified, on the law, by adding thereto a provision that any reduction in benefits will require a finding that petitioner’s minor children do not require the assistance to which they are entitled. Determination otherwise confirmed, without costs or disbursements, and matter remanded to the respondent State commissioner for further proceedings not inconsistent herewith. While the determination of willfulness was supported by substantial evidence, absent a finding of lack of need, petitioner’s minor children may not be deprived of the assistance which they are entitled to receive (see Matter of Ryan v New York State Dept, of Social Servs., 40 AD2d 867; Matter of Payne v Sugarmem, 39 AD2d 720, affd 31 NY2d 845). Hopkins, Acting P. J., Damiani, Rabin, Shapiro and Titone, JJ., concur.