Gear v. Perales

Judgment unanimously reversed, on the law, without costs, and petition granted. Memorandum: In this CPLR article 78 proceeding, petitioner challenges the decision of the New York State Department of Social Services affirming the determination of the Genesee County Department of Social Services, rendered after a fair hearing, disqualifying petitioner from receiving public assistance for a 90-day period. The agency’s determination should not be disturbed if it is rational and based on substantial evidence (Matter of Howard v Wyman, 28 NY2d 434, 438). Nevertheless, under the language of the regulation promulgated by the agency, a recipient’s failure to continue in employment or training must be willful before the agency may disqualify him from receiving public assistance (18 NYCRR 385.7). We find that the evidence at the fair hearing, which established, at worst, that petitioner was slow and disruptive on the job, was not sufficient to justify the inference that petitioner willfully failed or refused to accept manpower services (see 18 NYCRR 385.7 [a] [2] [v]; 385.8 [b]; Matter of Bradford v Blum, 91 AD2d 550). (Appeal from judgment of Supreme Court, Erie County, Kramer, J. — art 78.) Present — Dillon, P. J., Callahan, Doerr, Denman and O'Donnell, JJ.