White v. Lavine

41 A.D.2d 723, 341 N.Y.S.2d 430, 1973 N.Y. App. Div. LEXIS 4916

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1973
• Status: Published

Opinion

Determination of respondent State Commissioner of Social Services, dated May 24, 1972, affirming determination of the New York City Department of Social Services, unanimously annulled, on the law, and the proceeding remanded for rehearing, without costs and without disbursements. That determination directed reduction of petitioner’s assistance grants in such amounts as would recoup an allegedly fraudulent duplicate payment made to petitioner on his claim of theft of the original check from lps mail box. It was held after hearing that the evidence established that petitioner himself had cashed the original cheek, this although no expert handwriting evidence was adduced to establish that the indorsement was petitioner’s. (See Boyd v. Wyman, 39 A D 2d 874.) The check was cashed elsewhere than at petitioner’s usual place, and it appears that there is at least a question, not pursued at the hearing where petitioner was without counsel, as to whether the identification number noted on the check at the time of cashing was that of the petitioner. In the circumstances, it cannot be said that the determination was based on substantial evidence to sustain the finding of fact here made. A new hearing is required, at which there may be inquiry as to the identification number, and appropriate expert handwriting evidence, should the authenticity of the signature continue to be an issue. It should go without saying that should fraudulent duplication not be proven at the rehearing, petitioner would be entitled to be reimbursed for the recoupment, the full amount of which has been paid by means of the deductions ordered by respondent. Concur — McGivern, J. P., Markewich, Nunez, Lane and Tilzer, JJ.