Dost v. Wing

Proceeding pursuant to CPLR article 78 to review so much of a determination of the respondent Brian Wing, Commissioner of the Office of Temporary and Disability Assistance, dated May 22, 2003, as, after a fair hearing, confirmed the determination of the Suffolk County Department of Social Services, dated January 22, 2003, temporarily discontinuing the petitioner’s grant of public assistance and food stamps upon a finding that he refused to comply with the work experience requirements. Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that the determination of the respondent Brian Wing, Commissioner of the Office of Temporary and Disability Assistance, is annulled and the respondents are directed to restore the petitioner’s grant of public assistance and food stamps retroactive to the date of its termination. The petitioner failed to appear at a Suffolk Work Employment Program (hereinafter SWEP) appointment at the Department of Labor, and as a result, the Suffolk County Department of Social Services temporarily discontinued his public assistance and food stamps. After a fair hearing, the Office of Temporary and Disability Assistance (hereinafter OTDA) confirmed the discontinuance. A local agency may not discontinue a recipient’s public assistance benefits unless the recipient’s failure to comply with one of the department’s work rules is found to be willful and without good cause (see Social Services Law § 341 [1]; Matter of Mc 498 Killen v Perales, 133 AD2d 270 [1987]). In the OTDA’s determination, the Commissioner of OTDA failed to make a finding that the petitioner “willfully” refused to report to his SWEP appointment. Without such a finding, it cannot be concluded that the determination satisfied the requirements of Social Services Law § 341. Accordingly, the determination must be annulled. H. Miller, J.P., Adams, Goldstein and Spolzino, JJ., concur.