Opinion
November 21, 1983
Proceeding pursuant to CPLR article 78 to review a determination of the respondent State Commissioner of Social Services, dated March 26, 1981 and made after a statutory fair hearing, which affirmed determinations of the local agency to reduce the grant of public assistance received by petitioner on behalf of herself and her three minor children in order to recoup an overpayment of public assistance which allegedly resulted from petitioner's willful failure to report income and because she allegedly had available cash resources. Petition granted, determinations annulled, on the law, without costs or disbursements, respondents are directed to restore to petitioner any public assistance that may have been withheld pursuant to those determinations and the matter is remitted to the Supreme Court, Nassau County, for a hearing, in accordance herewith, to determine reasonable counsel fees. There is insufficient evidence in the record to sustain the respondent State commissioner's determination that petitioner willfully failed to report moneys from a basic educational opportunity grant, and a Christmas club account. Moreover, the record of the fair hearing does not establish that the local agency had complied with the then-applicable State and Federal regulations requiring that proper notice be given to a recipient of his or her obligation to report any changes in income which might affect the amount of the grant ( Matter of Curry v Blum, 73 A.D.2d 965). Accordingly, the determination of the respondent State commissioner and those of the local agency must be annulled. In addition, the respondent State commissioner's affirmance of so much of the local agency's determinations as terminated the portion of petitioner's grant intended for the benefit of her children was improper and would warrant modification of the commissioner's decision, were we not otherwise annulling it ( Matter of Brennin v Kirby, 79 A.D.2d 396, 400-401, mot for lv to app dsmd 54 N.Y.2d 830, cert den 456 U.S. 908). Inasmuch as the petitioner has been successful on her claim, which is cognizable under section 1983 of title 42 of the United States Code, the case must be remitted to Special Term to afford respondents an opportunity to demonstrate whether special circumstances exist which would bar an award of counsel fees (see US Code, tit 42, § 1988; Matter of Johnson v Blum, 58 N.Y.2d 454) and, if not, to fix a reasonable fee in accordance with the guidelines set forth in Matter of Rahmey v Blum ( 95 A.D.2d 294). Damiani, J.P., Titone, Lazer and Boyers, JJ., concur.