The opinion of the court was delivered by: METZNER
This is a motion in a purported class action for a preliminary injunction to stay the enforcement, operation and execution of New York State Department of Social Services Regulation, 18 N.Y.C.R.R. § 358.8(a)(1)(i). Plaintiffs also move to convene a three-judge court to rule on the constitutionality of the regulation.
Section 358.8(a) requires that recipients of public assistance be sent timely advance notice of any proposed action to discontinue or reduce payments. In cases where termination is predicated on the existence of "probable fraud," timely notice is defined as notice mailed at least five days before the date when such action would become effective. 18 N.Y.C.R.R. § 358.8(a)(1)(i).
Further, unless a fair hearing is requested within this period of timely notice, payments are discontinued without a hearing. § 358.8(c)(1).
Plaintiffs argue that this regulation denies due process of law to public assistance recipients who have been or may be terminated or reduced for probable fraud. They also claim the lack of equal protection of the laws, as there is different treatment for those terminated or reduced for probable fraud, and those adjusted for some other reason.
Pursuant to 18 N.Y.C.R.R. § 358.8(a)(1)(i), a Notice of Intent to Discontinue or Suspend Public Assistance (hereinafter Notice), dated October 15, 1974, was sent to plaintiff Lugo. She received the Notice on or about October 17. On October 21 or 22 she mailed a request for a fair hearing to the Albany address listed in the Notice. A hearing was scheduled for November 14, 1974. Her payments, however, were terminated as of October 20 because timely request for a hearing was not made. Due to the fact that her file was not available on the appointed date, the hearing was adjourned twice, to December 23, 1974. At that time, since the file was still unavailable, she was told that the Notice was being voided and that she would receive retroactive payments from the date of discontinuance. The complaint in this action was filed on December 24, 1974, one day after this "hearing." The order for retroactive payments was formalized on December 31, 1974.
Notice was sent to plaintiff Riley on November 15, 1974. It was received on November 20, 1974, the date listed for discontinuance of benefits. On that date Riley called the Department of Social Services at the telephone number provided in the Notice, requesting a fair hearing. Her payments were discontinued. She had still not received a fair hearing at the filing date of the complaint.
However, New York State contends that Riley was sent a regular "ten-day" notice on November 2, 1974, and that through a clerical oversight, her payments were discontinued because her call was outside the time limit allowed for that Notice (November 12). It overlooked the fact that her call was timely in terms of the five-day Notice. The State argues that Riley in fact had complied with the provision and in its answer filed January 29, 1975, it has agreed to reinstate her benefits retroactive to the date of discontinuance pending the outcome of a fair hearing.
The State now argues that the case is moot as to both named plaintiffs, that there was no case or controversy as to either on the date of filing the complaint, and that accordingly, the complaint must be dismissed.
As to plaintiff Lugo I agree. At the time the complaint was filed, it is clear that there was no controversy related to the constitutionality of the regulation, as all proceedings against her had been dropped. She lacked standing to sue as of the date of filing.
As to plaintiff Riley, she had every reason to believe that her benefits were discontinued under Section 358.8(a)(1)(i). Even if the State's version of its mixup is true, there was a real controversy at the time of filing this complaint.
The action of the State in reinstating retroactively Riley's benefits would ordinarily moot the case except for the request for class action certification. In Sosna v. State of Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975), the Court stated:
"If appellant had sued only on her own behalf, both the fact that she now satisfies the one-year residency requirement and the fact that she has obtained a divorce elsewhere would make this case moot and require dismissal. . . . But appellant brought this suit as a class action and sought to litigate the constitutionality of the durational residency requirement in a representative capacity. When the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by appellant." Id. 95 S. Ct. at 557. (holding action not moot).
In this case there has been no class certification as yet. However, in a footnote in the ...