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Petitioner Challenges Three Rulings from Dept. of Social Services



In this Article 78 family proceeding, Petitioners challenge three determinations of the Nassau County Department of Social Services.

On the first issue, the emergency assistance was denied to replace clothing of the petitioners’ four children, which was destroyed by parasitic pinworms.

As pertinent to this proceeding, Social Services Law § 350–j(3) provides: ‘Emergency assistance to needy families with children shall be provided in accordance with the regulations of the department for children who are without available resources, and when such assistance is necessary to avoid destitution.’

The County in its second affirmative defense asserts an all-too-familiar justification for its failure to provide an emergency grant for the children’s clothing. It claims that the only factors that warrant emergency assistance are ‘fire, flood or other catastrophe’, as set forth in 18 NYCRR § 352.7, a state departmental regulation, although the statute enabling emergency assistance contains no such limitation.

To the extent the state regulation imposes substantive limitations on the provision of such assistance not contained in the statute, it is invalid and not therefore a basis for denial. This fundamental legal interpretation has been repeatedly made in proceedings involving this same department.

Moreover, Respondent County is bound by a consent judgment, which specifically details the County procedure for determining eligibility for emergency assistance, and the only criterion mentioned in the judgment is ‘destitution’. No mention whatever is made of eligibility being dependent upon ‘fire, flood or other catastrophe’. Indeed, the County nowhere demonstrates here any compliance with the detailed procedures set forth in the judgment for investigation and assessment of destitution.

And yet, despite these uniform holdings concerning emergency assistance, the County persists in what can by now be described as a patently incorrect interpretation which borders upon disrespect, if not disobedience, of the clear mandate of the statutes and courts of this state. The waste of litigation resources and human suffering flowing from this agential intransigence are inexcusable. In this limited proceeding, as so many other courts have done, this Court can and does strike the defense asserting such a limitation of emergency assistance circumstances and remand to the respondents the Petitioners’ request for an emergency clothing grant to be evaluated in accordance with the prescribed statutory criteria.

Further, the Court believes there is presented a serious question concerning the County’s compliance with prior class action directives, stipulations and rules of law established by repeated holdings in this jurisdiction. Accordingly, the Court, in exercise of its residual discretionary powers, directs the Commissioner of the Nassau County Department of Social Services, personally, to appear before this Court at 10:00 a.m. on the fifth working day after service upon him of the judgment to be entered herein, to explain the Department’s unexplained but continued policy of emergency assistance limitation to circumstances of flood, fire or such other catastrophe.

Accordingly, the failure to notify properly in accordance with state regulations was not a harmless error, but abridged a fundamental right of petitioners. The reduction of the December 1973 grant is annulled and respondent County is directed to issue the balance of the proper grant, $92.70, within 10 days of being served with a copy of the judgment to be entered herein, without prejudice to any further proceedings conducted in accordance with applicable rules to effectuate the now-nullified recoupment.

The husband received a separate Aid to the Disabled grant in December 1973, and is a member of the class entitled to receive emergency assistance from the County under this Court’s interim orders and direction in a case, memorandum decision dated February 22, 1974.

The Court holds as well that the emergency circumstance created by the several determinations raised warrants a direct judicial resolution without first relegating petitioners to their fair hearing remedies.

Judgment is therefore granted in favor of petitioners pursuant to CPLR Article 78 and relief shall be directed in accordance with the above rulings.

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