(Download) "Matter Joan Curry v. Barbara Blum" by Supreme Court of New York ~ Book PDF Kindle ePub Free
eBook details
- Title: Matter Joan Curry v. Barbara Blum
- Author : Supreme Court of New York
- Release Date : January 28, 1980
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 63 KB
Description
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent State Commissioner of Social Services, dated February 28, 1978 and made after a statutory fair hearing, which modified a determination of the local agency to reduce petitioners current public assistance grant in order to recoup an amount received by the petitioner as income tax refunds, the appeal is from a judgment of the Supreme Court, Suffolk County, entered September 15, 1978, which annulled the determination and directed that petitioner be reimbursed the amount withheld from her grant. Judgment affirmed, without costs or disbursements. Petitioner is in receipt of a grant of aid to families with dependent children on behalf of herself and her two minor children. In January, 1978 the local agency informed petitioner that it intended to reduce her grant because of her receipt of income tax refunds. The State commissioner found, after the fair hearing, that the petitioner received an overpayment of assistance resulting from her willful failure to report the tax refunds to the agency until after they were fully expended. Petitioners uncontroverted testimony and her proof at the hearing reveal that she notified the local agency of her expected 1976 tax refunds in a March, 1977 application interview with an official of said agency. In addition, petitioner also submitted copies of her income tax forms to the agency. Petitioner received Federal and State income tax refunds in June, 1977. At the hearing she testified that she used those refunds to repay debts which she had incurred prior to her receipt of public assistance. The appellant contends that Special Term erred in failing to transfer the proceeding to this court for determination in the first instance pursuant to CPLR 7804 (subd [g]). The petition in the case at bar does not contend that the determination under review is not supported by substantial evidence (see CPLR 7803, subd 4) but, rather, alleges that it is arbitrary and capricious and erroneous as a matter of law (see CPLR 7803, subd 3). Where a petition fails to assert that the determination sought to be reviewed is not supported by substantial evidence, that claim is waived. The basis for transfer must be found in the petition itself and the State commissioners answer may not alter or amplify the particular grounds raised in the application or introduce an affirmative claim not made by the petitioner (Matter of Robertson v Lavine, 71 Misc. 2d 757, 758-759; Norton v Lavine, 74 Misc. 2d 590, 593; Matter of Williams v Lavine, 77 Misc. 2d 566, 567; Matter of Jennings v Lavine, 79 Misc. 2d 176, 177-178; Matter of Perez v Lavine, 79 Misc. 2d 179, 180; Matter of Russell v Dumpson, 79 Misc. 2d 968, 970; Matter of Berliner v Lavine, 80 Misc. 2d 1, 2; Matter of Fredericks v Dumpson, 84 Misc. 2d 514, 515; see, also, Lewis, Transfer of Article 78 Proceedings, NYLJ, Jan. 19, 1979, p 1, col 2; cf. OBrien v Barnes Bldg. Co, 85 Misc. 2d 424, 428-436, where the court dealt with the converse of the situation at bar, the petitioner claiming that a determination was not supported by substantial evidence and the court ruling that only an issue of law concerning statutory interpretation was presented). Thus, appellants argument that the determination under review is supported by substantial evidence is irrelevant because it is not responsive to the issues raised by the petition. The petition raises two grounds in support of the argument that the determination in question was arbitrary and capricious. Both are based upon the violation of procedures set forth in certain of the regulations promulgated by appellant. Special Term accepted the first of these grounds and held that the local [73 A.D.2d 965 Page 966]