Zembenski v. Blum

Appellate Division of the Supreme Court of New York

Zembenski v. Blum

83 A.D.2d 855, 442 N.Y.S.2d 15, 1981 N.Y. App. Div. LEXIS 15242

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 10, 1981

StatusPublished

Cited by2 cases

This text of 83 A.D.2d 855 (Zembenski v. Blum) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zembenski v. Blum, 83 A.D.2d 855, 442 N.Y.S.2d 15, 1981 N.Y. App. Div. LEXIS 15242 (N.Y. Ct. App. 1981).

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Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent State commissioner, dated November 23, 1979 and made after a statutory fair hearing, which affirmed a determination of the local agency to terminate petitioner’s public assistance. Petition granted, determination annulled, on the law, without costs or disbursements, and respondents are directed to reinstate petitioner’s grant retroactive to the date of termination. When the question is, as here, whether assistance should be discontinued the burden is on the local agency. There was a failure to prove by substantial evidence that the petitioner received either the initial medical evaluation form or the notice to discontinue assistance, or that such correspondence was posted and mailed. (See Matter of Ware v Shang, 73 AD2d 970.) We also hold that the determination that petitioner failed to take adequate steps to comply with the local agency’s request that she complete and return to it a second medical evaluation form sent to her is unsupported by substantial evidence. The record establishes reasonable efforts by petitioner to have the requisite medical form completed as well as establishing good cause for the delay in its mailing to the agency by the due date. Hence there was no violation of 18 NYCRR 385.7 (b) which would merit the imposition of sanctions. Rabin, J. P., Gulotta, Cohalan and Bracken, JJ., concur.

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Proceeding pursuant to CPLR article 78 to review a determination of the respondent State commissioner, dated November 23, 1979 and made after a statutory fair hearing, which affirmed a determination of the local agency to terminate petitioner’s public assistance. Petition granted, determination annulled, on the law, without costs or disbursements, and respondents are directed to reinstate petitioner’s grant retroactive to the date of termination. When the question is, as here, whether assistance should be discontinued the burden is on the local agency. There was a failure to prove by substantial evidence that the petitioner received either the initial medical evaluation form or the notice to discontinue assistance, or that such correspondence was posted and mailed. (See Matter of Ware v Shang, 73 AD2d 970.) We also hold that the determination that petitioner failed to take adequate steps to comply with the local agency’s request that she complete and return to it a second medical evaluation form sent to her is unsupported by substantial evidence. The record establishes reasonable efforts by petitioner to have the requisite medical form completed as well as establishing good cause for the delay in its mailing to the agency by the due date. Hence there was no violation of 18 NYCRR 385.7 (b) which would merit the imposition of sanctions. Rabin, J. P., Gulotta, Cohalan and Bracken, JJ., concur.

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Bluebook (online)

83 A.D.2d 855, 442 N.Y.S.2d 15, 1981 N.Y. App. Div. LEXIS 15242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zembenski-v-blum-nyappdiv-1981.

Opinion

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