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Plaintiff Seeks an Order Annulling Social Security Judgment



This is one of a series of applications numbering between motions and cross motions almost twenty all of which deal with the same aspects of public assistance grants in the category of Aid to Dependent Children. Petitioner seeks an order annulling a determination after fair hearing by Respondent Blum and a declaratory judgment invalidating the rules of the New York State Department of Social Services with respect to the recovery of advance utility payments as well as the procedure employed by the Nassau County Department of Social Services in recovering such payments pursuant to 18 NYCRR § 352.29(e).

Petitioner and her three minor children are currently receiving public assistance in the category of Aid to Dependent Children. Having previously received such assistance between June 27, 1978 and January 15, 1979, during the interval between January 15, 1979 and their restoration to the public assistance rolls on December 12, 1979 they were not the recipients of aid in this or apparently in any other category. After their restoration to the relief rolls, in January of 1980 their utility supplier, threatened to discontinue service because of nonpayment. Petitioner sought help from the Nassau County Department of Social Services. The Department agreed to make an advance to forestall a utility shutoff pursuant to 18 NYCRR § 352.7(g)(5) provided Petitioner signed a written request.

Between January and April of 1980 Petitioner’s grants were reduced by virtue of the Department’s recovery of the sum thus advanced as well as to recover certain sums paid directly to the utility between May 3, 1978 and September 8, 1978 on behalf of the Petitioner who was at that time receiving public assistance. The reductions ceased in April but in July of 1980 the Department notified Petitioner that it proposed further reductions to recover sums paid directly to utility on her behalf between November 4, 1978 and February 28, 1979 as well as funds advanced for utility expenses between September 5, 1979 and January 7, 1980 and between January 7, 1980 and May 5, 1980.

The petitioner requested a fair hearing to contest these deductions and the hearing was held on September 29, 1980. Respondent Blum issued her decision on October 16, 1980. She determined that the Nassau County Department of Social Services had erred in its application of 18 NYCRR § 352.7(g)(5) in certain respects, but upheld its recovery of utility advances pursuant to 18 NYCRR § 352.29(e). It remanded the matter to the Department to recompute its proposed recoveries in light of the decision.

It has justly been observed that the rules and regulations governing public assistance at both the State and Federal levels now rival the Internal Revenue Code in complexity. The linguistic terrain is characterized by euphemisn and neutrality so as to match in blandness the architecture of public housing. Some complexity and tedium may be avoided, however, by narrowly circumscribing the area of inquiry.

Emergency grants are made to applicants for public assistance to prevent utility shutoffs pursuant to 18 NYCRR § 352.7(g)(4). Advances are made to recipients of public assistance for the same purpose pursuant to subdivision (5) of the same subsection of the regulation.

Advances pursuant to (5) are recoverable, but emergency grants pursuant to (4) are not. Respondent Blum found that the Nassau County Department of Social Services had misapplied these sections in calculating the amount to be recovered from Petitioner in that it was seeking to recover sums she received to forestall shutoff pursuant to subdivision (4) while not a recipient of assistance. The matter was therefor remanded to the Department. By virtue of such remand as well as CPLR 7804(g) Petitioner’s challenge to the decision after hearing may not be considered.

Petitioner not only contests the manner in which 18 NYCRR § 352.7(g)(5) has been applied, she contends that the Regulation is in conflict with Federal law and should be declared invalid. Such a contention is one which this court may entertain..

Petitioner contends that the State may only recover advances from “income or resources exclusive of the current assistance payment” under applicable Federal law. 18 NYCRR § 352.7(g)(5) which provides for the recovery of advances to forestall utility shutoffs is not so limited.

No single recovery deduction pursuant to 18 NYCRR § 352.7(g)(5) may exceed 10 percent of the household’s needs. In the case of multiple recoveries the maximum is 15 percent of the household needs. Petitioner argues the formulaic limitation in 18 NYCRR § 352.7(g)(5) is not adequate compliance with 23 CFR 233.20 and 42 U.S.C.A. § 602.

In short, it appears that a solution to Petitioner’s complaint lies within her grasp. She has the power to convert her utility billing to a monthly basis. If she does not do so, she cannot complain when advances to cover bi-monthly bills are recouped in the manner in which they are being recouped. Thus, on this record there appears nothing improper in the implementation of 18 NYCRR § 352.29(e). Upon a showing that monthly billing is unavailable to Petitioner, the court might be compelled to reconsider.

Petitioner’s application for relief pursuant to Article 78 is denied. Her action for a declaratory judgment finding 18 NYCRR § 352.7(g)(5) invalid and declaring the implementation by Nassau County of 18 NYCRR § 352.29(e) improper is denied. The denial as to 18 NYCRR § 352.29(e) is without prejudice. The opposing papers submitted by Respondent Blum and entitled a “Cross Motion” are deemed not a request for affirmative relief, but essentially only opposition to the relief sought by Petitioner. Poor person relief is granted.

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