Smith v. Lavine

In this proceeding pursuant to article 78 of the CPLR, inter alia, (1) to review a determination of the Department of Social Services of the State of New York, rendered June 22, 1972, which, after a statutory fair hearing, affirmed a determination of the Department of Social Services of the City of New York to discontinue a grant of “aid to dependent children” to petitioner, and (2) in the alternative, to set aside a bond and mortgage given by petitioner to respondent commissioner of said city agency, the respondent commissioner of said State agency has moved to dismiss the petition pursuant to CPLR 3211 on the ground that the petition fails to state a cause of action. Motion denied, with $20 costs. The time within which the commissioner of said State agency may serve his answer to the petition, with supporting affidavits, if any, is extended until 20 days after entry of the order to be made hereon; and a reply, if any, may be served within five days after service of such answer. Until interposition of such answer and supporting affidavits, if any, and a reply, if any, determination of this proceeding on the merits as against both respondents will be held in abeyance. There are questions of fact whether petitioner’s request for discontinuance of her grant was voluntary (Lawson v. Brown, 349 F. Supp. 203, 206) and whether and to what extent termination or reduction of installment payments, in order to recoup, may be justified (Norton v. Lavine, 74 Misc 2d 590, 598, citing Matter of Ryan v. New York State Dept, of Social Servs., 40 A D 2d 867). Since the motion to dismiss was addressed to the petition as a whole, it must be denied in its entirety (De Maria v. Josephs, 41 A D 2d 655). Hopkins, Acting P. Shapiro, Christ, Brennan and Benjamin, JJ., concur.