Opinion
October 2, 1978
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the State Commissioner of Social Services which, after a statutory fair hearing, affirmed a determination of the local agency denying petitioner's application for public assistance, the appeal is from so much of a judgment of the Supreme Court, Nassau County, dated December 1, 1977, as granted the petition to the extent of directing the State commissioner to utilize a shelter allowance in computing petitioner's public assistance grant. Judgment affirmed insofar as appealed from, without costs or disbursements. The determination of the State commissioner was properly modified by Special Term because it was not supported by substantial evidence (see CPLR 7803, subd 4). While the granting of an ongoing mortgage payment allowance is discretionary, a review of the facts in the present case indicates that the State commissioner's denial of the allowance was capricious and arbitrary. Loss of the petitioner's home does not appear inevitable. In fact, petitioner appears quite anxious and willing to save her home. A grant of a monthly mortgage allowance would prevent petitioner from falling further behind in her payments, while giving her the opportunity of catching up on her arrears. Petitioner should be given this opportunity. Martuscello, J.P., Titone, Rabin and Hawkins, JJ., concur. [ 92 Misc.2d 460.]