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In the Matter of Selenia Soto v. Stephen Berger, as Commissioner of the New York State Department of Social Services
Respondent's determination dated September 22, 1975 affirming, after a fair hearing, the determination of the New York City Department of Social Services to discontinue the petitioner’s grant of public assistance, unanimously annulled, on the law, without costs and without disbursements, and the matter remanded for a new hearing. The only evidence to support the determination that the petitioner’s husband had been living with her and making his income available to her was a copy of an investigation report filled with hearsay. As we have held before, "evidence of the type found here does not even approach minimum standards of fairness” (Matter of Del Valle v Sugarman, 44 AD2d 523, 524; Matter of Bernard v Lavine, 48 AD2d 616). No weight is added to the evidence by any inference or presumption arising from the petitioner’s not having testified.
[530] She was neither asked nor did she refuse to testify. (Cf. Matter of Bernard v Lavine, supra.) Concur—Murphy, J. P., Birns, Capozzoli, Nunez and Lynch, JJ.