Wilson v. Berger

52 A.D.2d 586, 382 N.Y.S.2d 326, 1976 N.Y. App. Div. LEXIS 12180

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 1976
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent State Commissioner of the Department of Social Services, dated September 17, 1975 and made after a statutory fair hearing, which affirmed a determination of the respondent Commissioner of the Rockland County Department of Social Services, which terminated a grant of aid to dependent children to petitioner and her children. Determination annulled, on the law, without costs or disbursements, and matter remitted to the respondent State Department of Social Services for a de novo hearing and a new determination. No fact questions were presented on this appeal. The grant in question was terminated on the ground that petitioner was the registered owner of an automobile, a resource which she had failed to report to the local welfare agency. There is no indication in this record of a finding of lack of need (see Matter of Zabala v Lavine, 48 AD2d 880, 881); nor has it been established that the automobile is a currently valuable asset, the sale of which would result in a cash surplus which could then be applied to petitioner’s needs (see Matter of Knowles v Lavine, 34 NY2d 721). Moreover, it appears that the respondent State Commissioner improperly relied on a matter (a loan agreement for the purchase of the automobile) dehors the record. The new hearing will afford the petitioner the opportunity to explain the entries made on that document, should it be offered in evidence. Gulotta, P. J., Martuscello, Latham, Cohalan and Shapiro, JJ., concur.