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In re Selby

Supreme Court of New York, Second Department

June 19, 2013

In the Matter of Duane Selby, petitioner,
v.
Elizabeth Berlin, etc., respondent. Index No. 2788/12

Nathan Treadwell, Yonkers, N.Y., for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing and David Lawrence III of counsel), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, SYLVIA HINDS-RADIX, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Office of Temporary and Disability Assistance dated December 16, 2011, which, after a fair hearing, confirmed a determination of the Commissioner of the Westchester County Department of Social Services, discontinuing the petitioner's public assistance grant for a period of 45 days.

ADJUDGED that the determination of the New York State Office of Temporary and Disability Assistance dated December 16, 2011, is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.

In 2011, the Westchester County Department of Social Services (hereinafter the DSS) notified the petitioner that it intended to discontinue its provision of public assistance benefits to him based on his failure, inter alia, to complete a substance abuse treatment program to which it had referred him. During a fair hearing, the petitioner testified, in effect, that he had good cause for not completing the substance abuse treatment program due to a medical condition which prevented him from walking to and from the program. He also testified that he had requested transportation assistance from the DSS and that the DSS had refused to provide it. A DSS employee testified that, inter alia, the petitioner had not made any effort to obtain transportation assistance, that he had not asked the witness, the housing caseworker, or the petitioner's health maintenance organization (hereinafter HMO) for help, and that the HMO would have paid for the petitioner's transportation to and from the substance abuse treatment program if he had asked. Following the fair hearing, the respondent, the New York State Office of Temporary and Disability Assistance (hereinafter the OTDA), affirmed the DSS's determination, based on its findings that, inter alia, the petitioner's testimony that he had sought transportation assistance was uncorroborated and not credible and that he had failed to demonstrate good cause for failing to comply with the DSS's requirement that he complete the substance abuse treatment program. The petitioner commenced this CPLR article 78 proceeding to review the determination.

Review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence (see Matter of Tutuianu v New York State, 17 A.D.3d 687). Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 180). Issues of credibility are for the administrative factfinder to resolve (see Matter of Williams v Perales, 156 A.D.2d 697, 698; see also 18 NYCRR 358-5.6[b][7]; Matter of Collins v Codd, 38 N.Y.2d 269, 270-271), and are beyond this Court's power of review (see Matter of Dente v Martinez, 15 A.D.3d 656, 657; Matter of Cruz v Wing, 276 A.D.2d 307), as "[t]his Court may not substitute its judgment for that of the respondent [agency]" (Matter of Bello v New York State Off. of Temporary & Disability Assistance, 90 A.D.3d 1706, 1707; see Matter of Berenhaus v Ward, 70 N.Y.2d 436, 443). Here, the OTDA's determination that the DSS's decision was correct was based on substantial evidence (see Social Services Law 132[4][c], [f]; 18 NYCRR 351.2[i], 351.26, 358-5.6[b][7], 358-5.9[a]; Matter of Berenhaus v Ward, 70 N.Y.2d at 443; Matter of Collins v Codd, 38 N.Y.2d at 270-271; Matter of Bello v New York State Off. of Temporary & Disability Assistance, 90 A.D.3d 1706; Matter of Wescott v Hansell, 67 A.D.3d 1434, 1435; Matter of Cruz v Wing, 276 A.D.2d at 307; Matter of Williams v Perales, 156 A.D.2d at 698).

The petitioner's remaining contentions are without merit.

Accordingly, the OTDA's determination must be confirmed, the petition denied, and the proceeding dismissed on the merits.

DILLON, J.P., ANGIOLILLO, CHAMBERS and HINDS-RADIX, JJ., concur.


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