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HURLEY v. TOIA

May 3, 1977.

Kathleen HURLEY, on behalf of herself and all other persons similarly situated, Plaintiff,
v.
Philip TOIA, Individually and in his capacity as Commissioner of the New York State Department of Social Services, and William J. Eagen, Jr., Individually and in his capacity as Dutchess County Commissioner of Social Services, Defendants.



The opinion of the court was delivered by: CANNELLA

OPINION AND ORDER

CANNELLA, District Judge.

Named plaintiffs, *fn1" recipients of public assistance benefits under New York State's Home Relief program, *fn2" suing on behalf of themselves and all others similarly situated, seek a preliminary injunction staying the enforcement of a recent amendment to 18 N.Y.C.R.R. § 358.8(c)(1) insofar as it authorizes the termination, reduction or discontinuance of Home Relief benefits prior to affording the opportunity for a fair hearing to contest such termination, reduction or discontinuance. The Court finds that this action may be maintained as a class action, and hereby grants the motion for a preliminary injunction.

 FACTS

 Except for a thirty-day period during November 1976, plaintiff Kathleen Hurley had been a recipient of Home Relief continuously from March 1975 until April 13, 1977, when her assistance was terminated by action of the Dutchess County Department of Social Services ("Dutchess County DSS"). *fn3" Her termination was due to the following set of circumstances: Having been deemed employable by the Dutchess County DSS, Hurley was required to report for work relief assignments pursuant to N.Y. Social Services Law § 164 and 18 N.Y.C.R.R. § 385.3(b)(1)(v). In early March 1977 she contacted the local Social Services office to report that her mother was ill and could not care for herself or for plaintiff's two brothers, aged eleven and twelve. Plaintiff further stated she was going to tend her mother and brothers and therefore would be unable to report to her work relief assignment. *fn4" Hurley failed to report for the entire month of March, and was notified, by letter dated March 28, 1977, that her assistance would be discontinued for this reason. See N.Y.Soc.Serv.Law § 164(4) (McKinney 1976).

 After receiving this notice, Hurley made a timely request for a fair hearing to contest the discontinuance of benefits, but was denied continuation of assistance pending the hearing. *fn5" In response to inquiries made by counsel, officials of both the Dutchess County and New York State DSS stated that "aid continuing" status had been denied by virtue of an amendment to 18 N.Y.C.R.R. § 358, effective April 11, 1977, that excepted from the usual requirement of a pre-termination fair hearing review of

 a determination by a Social Services official, that [a recipient] voluntarily terminated his employment or reduced his earning capacity for the purpose of qualifying for a larger amount of Home Relief or that such person without good cause, refused to register with or report semimonthly to the New York State Employment Service, refused to accept employment or refused to participate in Work Relief on a public work project or that such person otherwise refused to comply with employability requirements of § 131 of the Social Services Law or Part 385 of this Title.

 18 N.Y.C.R.R. § 358.8(c)(1).

 The named plaintiffs, purporting to represent

 all recipients of Home Relief in the State of New York who are deemed employable and are not caretakers of minor or needy children, who timely request fair hearings to contest the proposed discontinuance, suspension, or reduction of their benefits for alleged violations of employability requirements and whose benefits are terminated, suspended or reduced prior to the rendering of fair hearing decisions pursuant to 18 N.Y.C.R.R. § 358.8(c)(1),

 maintain that the regulation is violative of their due process rights in that it allows discontinuance of public assistance benefits prior to a hearing on the correctness of such action. See Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).

 Jurisdiction over this action is founded upon 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. Almenares v. Wyman, 453 F.2d 1075, 1081-83 (2d Cir. 1971), cert. denied, 405 U.S. 944, 92 S. Ct. 962, 30 L. Ed. 2d 815 (1972).

 CLASS ACTION CERTIFICATION

 The Court finds this lawsuit properly maintainable as a class action, as the requisites of Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure have been satisfied.

 Class Definition

 At the outset, defendants maintain that the proposed class is too broadly drawn. *fn6" Because the class includes individuals affected by five separate exceptions to the general requirement that aid continue pending the fair hearing determination, they argue that different issues will be raised with respect to some class members than are raised by others. These allegedly distinct categories arise when a Home Relief recipient has

 1) voluntarily terminated his employment or reduced his earning capacity for the purpose of qualifying for a larger amount of Home Relief;

 2) without good cause refused to register with or report semi-monthly to the New York ...


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