Saladino v. Perales

In a proceeding pursuant to CPLR article 78 to compel the respondents to comply with a Decision After Fair Hearing dated September 3, 1986, and to recompute the petitioner’s food stamps authorization for a specified period, the petitioner appeals from a judgment of the Supreme Court, Queens County (Smith, J.), entered August 31, 1989, which dismissed the proceeding. Ordered that the judgment is reversed, on the law, with one bill of costs, and the petition is granted to the extent that the respondent Commissioner of the New York City Department of Social Services is directed to (1) comply with the Decision After Fair Hearing issued by Cesar Perales on September 3, 842 1986, (2) render an accounting to the petitioner of the exact amount of food stamps to which she is entitled, and (3) issue her the food stamps to which she is entitled. The record indicates that all of the documentation necessary to recalculate the petitioner’s food stamp benefits in accordance with the Decision After Fair Hearing are available in the files of the Department of Social Services of the City of New York. This being the case, there is no reason for the delay in complying with the Decision After Fair Hearing. With respect to the petitioner’s claim for attorneys’ fees, her cause of action merely concerns the respondents’ failure to abide by a State regulation with respect to requiring social service officials to promptly comply with directives set forth in the Decision After Fair Hearing (see, 18 NYCRR former 358.22). There was no showing by the petitioner of a violation of any constitutional right, or the violation by the State of any right created by Federal law (see, Matter of Williams v D’Elia, 119 AD2d 678). Accordingly, the petitioner failed to raise a bona fide civil rights claim pursuant to 42 USC § 1988 so as to entitle her to an award of attorneys’ fees (see, Matter of Middleton v Perales, 160 AD2d 800; Matter of Kross v Perales, 156 AD2d 451; Matter of Rozier v Perales, 149 AD2d 710; Matter of Gelin v Perales, 149 AD2d 593). Bracken, J. P., Sullivan, Miller and Ritter, JJ., concur.