Finnegan v. Kirby

Proceeding pursuant to CPLR article 78 to review a determination of the respondent State Commissioner of Social Services, dated October 24,1979 and made after a statutory fair hearing, which affirmed a determination of the local agency insofar as it sought to recoup overpayments from petitioner’s current assistance grant, but reduced the amount to be recouped. Determination annulled, on the law, without costs or disbursements, petition granted, and respondents are directed to return to the petitioner the sums, if any, which have been withheld from her grant. The record does not support the finding made by the State commissioner that petitioner willfully withheld information regarding her income or resources (cf. Matter of Sanzoverino v D’Elia, 71 AD2d 1026; Matter of Nelson v Dumpson, 52 AD2d 771; Matter of McCallion v Dumpson, 51 AD2d 803; 18 NYCRR 352.31 [d] [2]). Pursuant to the commissioner’s own regulations, in the absence of a recipient’s willful withholding of information as to his income and resources, recoupments of overpayments “shall not be required unless the recipient has currently available income or resources, exclusive of the current assistance payment” (18 NYCRR 352.31 [d] [1] [ii]). No such showing has been attempted here (cf. Matter of Goloty v Smith, 70 AD2d 642). Hopkins, J. P., Mangano, Gulotta and Margett, JJ., concur.