Windbush v. Perales

163 A.D.2d 480, 559 N.Y.S.2d 670, 1990 N.Y. App. Div. LEXIS 8812

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1990
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78, inter alia, to review two determinations of the Commissioner of the New York State Department of Social Services, dated September 8, 1989, and October 24, 1989, respectively, made after statutory fair hearings, which confirmed determinations of the Suffolk County Department of Social Services, including the amount of the petitioner’s Supplemental Security Income benefits in determining her emergency housing needs.

Adjudged that the petition is granted, on the law, with one bill of costs, to the extent of annulling the determinations, and the matter is remitted to the respondent Commissioner of the Suffolk Department of Social Services for new determinations as to the petitioner’s emergency housing needs.

The respondent New York State Department of Social Services concedes that it was improper to include the petitioner’s Supplemental Security Income grant in determining the amount of her emergency housing needs. Inasmuch as we agree that this was error, the determinations must be annulled (see generally, 42 USC § 602 [a] [24]; Matter of Reeves v Fahey, 65 AD2d 633; Matter of Barton v Lavine, 54 AD2d 350).

However, in light of the fact that the petitioner points to no claim arising under 42 USC § 1983, an award of attorneys’ fees pursuant to the Civil Rights Attorney’s Fees Act (see, 42 USC § 1988), is unwarranted (see, Matter of Bess v Toia, 66 AD2d 844).

We have reviewed the petitioner’s remaining contentions and find them to be meritless or academic in light of our determination. Kunzeman, J. P., Hooper, Sullivan and O’Brien, JJ., concur.