Zembenski v. Blum

Proceeding pursuant to CPLR article 78 to review a determination of the respondent State commissioner, dated November 23, 1979 and made after a statutory fair hearing, which affirmed a determination of the local agency to terminate petitioner’s public assistance. Petition granted, determination annulled, on the law, without costs or disbursements, and respondents are directed to reinstate petitioner’s grant retroactive to the date of termination. When the question is, as here, whether assistance should be discontinued the burden is on the local agency. There was a failure to prove by substantial evidence that the petitioner received either the initial medical evaluation form or the notice to discontinue assistance, or that such correspondence was posted and mailed. (See Matter of Ware v Shang, 73 AD2d 970.) We also hold that the determination that petitioner failed to take adequate steps to comply with the local agency’s request that she complete and return to it a second medical evaluation form sent to her is unsupported by substantial evidence. The record establishes reasonable efforts by petitioner to have the requisite medical form completed as well as establishing good cause for the delay in its mailing to the agency by the due date. Hence there was no violation of 18 NYCRR 385.7 (b) which would merit the imposition of sanctions. Rabin, J. P., Gulotta, Cohalan and Bracken, JJ., concur.