Etten v. Blum

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Ulster County) to review a fair hearing decision of the Commissioner of the New York State Department of Social Services which affirmed a determination of the Ulster County Department of Social Services discontinuing petitioner’s grant of aid to dependent children for herself and five minor children. Petitioner and her five children were recipients of a grant of aid to dependent children (hereinafter ADC) from her local agency, the Ulster County Department of Social Services, when, during November of 1978, the local agency requested that petitioner provide it with a second mortgage on her home. Upon petitioner’s refusal of this request, the local agency informed her by notice dated November 20, 1978 that her family’s ADC grant would be discontinued because of her action. As a result, petitioner requested a fair hearing upon the matter from the State Commissioner of Social Services, and a hearing was held on December 14, 1978. Thereafter, in a written decision dated January 18, 1979, the commissioner affirmed the determination of the local agency, and the instant proceeding ensued. Challenging the commissioner’s ruling, petitioner now seeks an order from this court either annulling completely the determination at issue here, or in the alternative, annulling the determination insofar as it discontinues aid for petitioner’s five children. In our judgment, only the latter proposal has merit. Clearly, in this instance the decision to discontinue the ADC grant to both petitioner and her five children was premised solely upon petitioner’s unwillingness to execute a second mortgage on her home in favor of the local agency as provided in subdivision 1 of section 360 of the Social Services Law, and such being the case, respondents obviously gave no consideration to the actual needs of the children in directing the discontinuance of the ADC grant. Under these circumstances, to sustain such a cut off of aid would serve to deprive the children of assistance only because of the wrongdoing of one of their parents in refusing to comply with a statutorily authorized request of the local agency, and this course of action has been specifically found to be impermissible in Matter of Payne v Sugarman (39 AD2d 720, affd on other grounds 31 NY2d 845), a case only recently cited with approval by the Court of Appeals in Matter of Gunn v Blum (48 NY2d 58; see, also, Matter of Foster v Blum, 71 AD2d 758). Accordingly, the commissioner’s decision must be overruled to the extent that it directs an end to the grant of aid to petitioner’s five children. As for the decision to discontinue the ADC grant for petitioner herself, however, this should not be disturbed. The pertinent statute, cited above, specifically authorizes the discontinuance of the grant to petitioner based upon her refusal to execute the second mortgage, and none of the arguments advanced by petitioner 731 for continuance of assistance to her personally have any substance. There is no requirement that the local agency exhaust other alleged resources of petitioner, e.g., moneys allegedly inherited by her former husband, before seeking a mortgage from petitioner on her property. Similarly, the local agency indicated its willingness to work with petitioner’s attorney in arranging for the execution of the mortgage, and, consequently, petitioner cannot justify her refusal to give the second mortgage on the ground that the local agency would not give her a copy of the mortgage to take to her attorney for consultation. Determination modified, by annulling so much thereof as discontinued the ADC grant to petitioner’s five children, and, as so modified, confirmed, without costs. Sweeney, Kane, Main and Casey, JJ., concur. Mahoney, P. J., dissents and votes to confirm in the following memorandum.