Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 28, 2012
Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam, Manzanet-Daniels, JJ.
Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered December 17, 2010, which granted respondents' cross motions to dismiss the petition seeking, among other things, to annul New York City Human Resources Administration's determination, dated October 9, 2009, that petitioner is not entitled to childcare benefits, and dismissed, without prejudice, the proceeding brought pursuant to CPLR article 78 for failure to exhaust administrative remedies, unanimously affirmed, without costs.
Filing a compliance complaint was not an appropriate remedy following the agency's determination; indeed, the agency had complied with the fair hearing decision ordering it to determine petitioner's eligibility for childcare benefits (see 18 NYCRR 358-6.4[c]). However, before commencing this proceeding, petitioner should have sought a fair hearing of the agency's determination that she was ineligible for such benefits (see Social Services Law § 22[a],[d]). Because petitioner's claims involve factual questions reviewable at the administrative level, her failure to exhaust her administrative remedies cannot be excused by the mere assertion of futility or a constitutional violation (see Matter of Schulz v State of New York, 86 NY2d 225, 232 , cert denied 516 US 944 ; Matter of Wilkins v Babbar, 294 AD2d 186, 187 ). Accordingly, rather than dismiss the proceeding without prejudice to the filing of a compliance complaint, the court should have dismissed the proceeding without prejudice to seeking a fair hearing.
Given petitioner's failure to exhaust administrative remedies, we need not reach her argument that the regulation at issue (18 NYCRR 385.4[a][ii]) is invalid.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 28, 2012
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