In the Matter of the Application of QUANISHA SMITH, Petitioner,
ELIZABETH BERLIN, as Executive Deputy-Commissioner of the New York State Office of Temporary and Disability Assistance, and ROBERT DOAR, as Administrator of the New York City Human Resources Administration, and BQNY PROPERTIES, LLC, Respondents For a Judgment Pursuant to Article 78 and Section 3 001 of the Civil Practice Law and Rules Index No. 400903/2010
For Petitioner and Intervenor Lester Helfman Esq., Susan Jacquemot Esq. and Matthew B. Moses Esq. Kramer Levin Naftalis & Frankel, LLP
For Respondent Doar Stephanie A. Feinberg, Special Assistant Corporation Counsel New York City Human Resources Administration
For Respondent Berlin Domenic Turziano, Assistant Attorney General
DECISION AND ORDER
LUCY BILLINGS, J.S.C.
The numbers of New York City residents dependent on public assistance and food stamps for sustenance has risen steadily during the recent economic crisis. The New York City Human Resources Administration (HRA) reduces or discontinues this needed assistance, however, as a penalty when assistance recipients capable of work are charged with failing to comply with requirements that they train for, seek, and maintain employment. N.Y. Soc. Serv. Law (SSL) §§ 335(3), 335-a(4), 335-b(5)(a), 336, 342; 18 N.Y.C.R.R. §§ 385.2(f), 385.6(a), 385.7(a), 385.9(a), 385.12. Recipients are entitled to appeal these penalties to the New York State Office of Temporary and Disability Assistance (OTDA), which affirms or reverses the penalty.
I. PETITIONER SMITH
Respondent Commissioners of these two agencies reduced petitioner Quanisha Smith's public assistance as a punitive sanction for her alleged failure to attend a mandatory employment appointment. SSL § 331(1); 18 N.Y.C.C.R. § 385.2. Petitioner received respondent Commissioner of HRA's Conciliation Notification informing her of her noncompliance and of a conciliation conference to explain why she did not report to or cooperate with the mandatory appointment. After the conciliation process was unsuccessful, she received City respondent's Notice of Decision that her public assistance would be reduced because she "willfully and without a good reason failed or refused to comply with the requirement to show up for the employment or work activity assignment." V. Pet./Compl. Ex. F, at 2.
Petitioner claims the Conciliation Notification and the Notice of Decision issued by City respondent violate SSL §§ 22(12)(f) and (g) and 341(1)(a) and (b), 18 N.Y.C.R.R. § 358-3.3, 7 C.F.R. § 273.13(a)(2), and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. She claims the Conciliation Notification violates SSL § 341(1)(a), because the notice fails to specify the instance of her noncompliance or the necessary actions to avoid a reduction of public assistance and lacks examples of evidence to establish an exemption from work requirements or that her noncompliance was unwillful or with good cause, which would avoid a sanction. She claims the Notice of Decision violates SSL § 341(1)(b) because the notice similarly fails to specify how or why her noncompliance with work requirements was willful, how or why it was without good cause, and the necessary actions to avoid a reduction of assistance, as well as how she did not comply.
Petitioner further claims this omitted information regarding the substance of evidence a public assistance recipient must present to avoid a punitive sanction compromises her rights to adequate notice provided by SSL § 341(1)(a) and (b), 18 N.Y.C.R.R. § 358-3.3, 7 C.F.R. § 273.13(a)(2), and due process, to enable her to challenge the Notice of Decision at an administrative hearing. Finally, she claims respondent Executive Deputy Commissioner of the State OTDA conducted the administrative hearing she attended in violation of lawful procedure. C.P.L.R. § 7803(3). The Administrative Law Judge (ALJ) presiding at the hearing failed to develop the record, by-eliciting testimony and documents or adjourning the hearing for that purpose, and assess whether the notices issued complied with all applicable laws.
After petitioner commenced this proceeding, City respondent restored all the reductions of petitioner's public assistance. City respondent also revised the Conciliation Notification and claims it now complies with SSL § 341(1)(a).
II. INTERVENING PETITIONER COLAVECCHIO
City respondent discontinued proposed intervening petitioner Anthony Colavecchio's public assistance as a punitive sanction for his alleged failure to attend a mandatory employment appointment. Colavecchio received the same Conciliation Notification, except its dates and times, as petitioner Smith, informing him of his noncompliance with mandatory work requirements. After an unsuccessful conciliation conference, Colavecchio received a Notice of Decision informing him of City respondent's determination to discontinue Colavecchio's public assistance because Colavecchio "willfully and without a good reason failed or refused to comply with the requirement to participate in the Job Search program." 2d Am. V. Class Action Pet./Compl. Ex. M, at 1.
Colavecchio seeks to challenge the adequacy of the Conciliation Notification and Notice of Decision on the same grounds as petitioner Smith. Colavecchio similarly claims that the deficient notices impeded his preparation and presentation of defenses at an upcoming administrative hearing.
Upon petitioner's and Colavecchio's motion seeking his intervention as a petitioner and class certification, and before his scheduled hearing, City respondent withdrew the determination to discontinue Colavecchio's public assistance and fully restored his discontinued assistance.
III. RELIEF SOUGHT
Petitioner Smith and intervenor Colavecchio move for:
(1) Colavecchio's intervention as a co-petitioner, C.P.L.R. §§ 1013, 7802(d);
(2) certification of a petitioner class, C.P.L.R. §§ 902, 903, of "all present and future recipients of public assistance and/or Food Stamps in New York City who were or may in the future be alleged to have violated employment-related requirements on or after July 8, 2007, and who suffered, or may still suffer a reduction or discontinuance of public assistance and/or food stamps as a result of a punitive sanction for such employment-rule violation, without having first received a Conciliation Notice and a NOI [Notice of Intent] that complies with the requirements of SSL § 341, " Aff. of Lester Helfman Ex. 1 (Oct. 22, 2010), 2d Am. V. Class Action Pet./Compl. ¶ 80; and
(3) further amendment of the amended petition to encompass intervenor Colavecchio's and the class' claims. C.P.L.R. § 3025(b) .
Intervenor Colavecchio has obtained the relief he sought annulling the determination to discontinue his public assistance, restoring the discontinued assistance, ...