Opinion
November 4, 1977
Appeal from the Monroe Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Dillon and Hancock, Jr., JJ.
Judgment unanimously reversed, on the law, without costs, determination annulled and matter remitted to respondent Reed for a further hearing in accordance with the following memorandum: This proceeding is brought pursuant to CPLR article 78 to annul a determination of the respondent commissioner after a fair hearing which affirmed a determination of the local agency to reduce petitioner's monthly assistance allowance in order to recover an alleged overpayment which resulted from petitioner willfully withholding information of income or resources (see 18 NYCRR 352.31 [d] [2], 348.4). The decision of respondent commissioner was made without the benefit of a verbatim transcript of the testimony before the hearing officer and must be reversed (18 NYCRR 358.18 [a]; see Matter of McIver v Berger, 55 A.D.2d 606; Matter of Halley v Lavine, 47 A.D.2d 945; Matter of Cruz v Lavine, 45 A.D.2d 720). The testimony of petitioner's witness, Joanne Russell, was not transcribed because, unknown to the participants in the hearing, the recording tape ran out. Her testimony was to the effect that the local agency's officials had prior knowledge of petitioner's expected tax refunds and gave petitioner permission to spend the refunds for personal needs. If competent and credible, Ms. Russell's testimony would support petitioner's contention that she did not willfully withhold information of income (see Matter of McCallion v Dumpson, 51 A.D.2d 803; Matter of Thomas v D'Elia, 48 A.D.2d 868; cf. Matter of Avery v Berger, 56 A.D.2d 725).