Johnson v. D'Elia

— Proceeding pursuant to CPLR article 78 to review a determination of respondent Commissioner of the New York State Department of Social Services, dated December [812] 11,1981 and made after a fair hearing, which confirmed the determination of the local agency denying petitioner’s request for a shelter allowance and a grant to cover mortgage arrears. Petition granted to the extent that the determination is annulled, on the law, without costs or disbursements, and the matter is remitted to the respondent State commissioner for further proceedings in accordance herewith. The determination of the respondent State commissioner confirmed a determination of the local agency denying a shelter allowance with respect to arrears and current payments on the mortgage on petitioner’s home. The determination of the respondent State commissioner must be annulled for the following reasons: (1) at the fair hearing, the agency’s representative admitted that the agency did not take the factors set forth in 18 NYCRR 352.27 (b) into account before making its determination that the property should not be conserved (Matter of McManus v D’Elia, 81 AD2d 866; Matter of Staiger v Kirby, 81 AD2d 642; Matter of Bryant v D’Elia, 77 AD2d 590), (2) respondent State commissioner’s conclusion that the health and safety of petitioner would not be severely threatened by the failure to pay petitioner’s mortgage arrears (18 NYCRR 352.7 [g] [6]) was not supported by substantial evidence, and (3) respondent State commissioner’s finding that payment of an ongoing shelter allowance would not be proper was similarly not supported by substantial evidence. Damiani, J. P., Mangano, Gibbons and Gulotta, JJ., concur.