Opinion
Index No. 402305/2012
04-20-2014
In the Matter of the Application of JESSICA GUZMAN, Petitioner, For a Judgment Pursuant to Article 78 and for Declaratory and Injunctive Relief v. ROBERT DOAR, as Commissioner of the New York City Human Resources Administration, and ELIZABETH BERLIN, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, Respondents
DECISION AND ORDER
LUCY BILLINGS, J.:
In this hybrid proceeding pursuant to C.P.L.R, Article 78 and plenary action, petitioner first seeks reversal of a determination by respondent Commissioner of the New York City Human Resources Administration (HRA), reducing petitioner's public assistance, and restoration of her assistance. C.P.L.R. § 7803. Second, she seeks declaratory and injunctive relief against both respondent Commissioner of HRA and respondent Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance ceasing the policies, procedures, and practices that led to the reduction of her assistance. 42 U.S.C. § 1983; C.P.L.R. § 3001.
I. BACKGROUND FACTS
Petitioner receives public assistance consisting of a cash grant, a regular shelter allowance, and the Family Eviction Prevention Supplement for herself and her children, all of which supplement the income she receives from her unsubsidized employment. On December 2, 2011, City respondent approved petitioner's part-time job as a secretary working Monday through Friday from 9:00 a.m. to 3:00 p.m. As part of the work requirements on which her public assistance is conditioned, HRA notified petitioner of a mandatory Back to Work (BTW) Vendor assignment scheduled for December 12, 2011, at 9:00 a.m. Upon receiving the notice on December 8, 2011, of her BTW Vendor appointment, petitioner informed an HRA caseworker of the conflict with her work schedule. The caseworker advised petitioner to telephone the HRA job center administering her assistance on the morning of the appointment to reschedule it. Petitioner telephoned the number provided on her BTW Vendor assignment notice and left a message on the morning of her appointment, informing HRA that she was unable to attend the appointment due to a conflict with her part-time job.
Petitioner maintains that she never received HRA's Conciliation Notification dated December 17, 2011, requiring her to contact HRA to explain her failure to comply with work requirements, and therefore did not appear for her conciliation appointment. Petitioner similarly maintains that she never received HRA's Notice of Decision dated December 31, 2011, reducing petitioner's public assistance for 180 days as a punitive sanction for her willful failure without good cause to comply with the work activity requirement December 12, 2011.
Petitioner further claims that City respondent failed to adhere to State respondent's prior Decision After Fair Hearing dated December 10, 2010. That Decision required City respondent to withdraw a prior determination made September 23, 2010, imposing a reduction of her assistance due to noncompliance with a work activity requirement; to restore her assistance; and to expunge the infraction from her record. When City respondent failed remove the September 2010 punitive sanction, which was the second one on her record, it rendered the December 2011 reduction a third sanction lasting 18 0 days, rather than the 90 days for a second infraction.
Petitioner requested and on June 7, 2012, attended an administrative hearing to address City respondent's reduction of her public assistance. At the hearing, petitioner testified that she never received the Conciliation Notification and Notice of Decision; that she was unable to secure time off from her job to attend the work activity appointment; and that, as instructed, she contacted HRA on the morning of her BTW Vendor appointment to reschedule it. State respondent issued a Decision After Fair Hearing dated June 28, 2012, affirming City respondent's determination reducing petitioner's public assistance for 180 days as a sanction for her failure to attend the BTW Vendor appointment December 12, 2011.
II. RELIEF SOUGHT BY THE PETITION AND THE PENDING MOTIONS
Petitioner challenges State respondent's Decision After Fair Hearing dated June 28, 2012, upholding City respondent's determination dated December 31, 2011, based on State respondent's failure to hold HRA to its burden to prove that the record supported HRA's action. Instead, State respondent shifted the burden of proof to petitioner, disregarded the evidence in the record that supported her testimony of a conflict with her work, and failed to inform petitioner of her right to an adjournment of the hearing for her to obtain documentary verification that she was at work at the time of the BTW Vendor appointment. 18 N.Y.C.R.R. §§ 358-5.6, 358-5.9(2.).
Petitioner alleges three claims against City respondent. (1) City respondent's determination reducing petitioner's assistance for 180 days due to her noncompliance with a work activity requirement, when petitioner did not fail to comply, violates New York Social Services Law (SSL) § 342. (2) City respondent's noncompliance with State respondent's Decision After Fair Hearing dated December 10, 2010, requiring City respondent to expunge the underlying infraction from petitioner's record, violates state regulations. 18 N.Y.C.R.R. §§ 358-6.1(b), 358-6.4. (3) City respondent's practice of autoposting, automatically equating a missed work activity appointment with grounds for a sanction, without an investigation or a review of public assistance recipients' case record, violates 18 N.Y.C.R.R. § 385-4.1 and deprives recipients of their enticlement in violation of federal and state constitutional due process guarantees.
Petitioner seeks an order vacating State respondent's decision dated June 28, 2012, and City respondent's determination dated December 31, 2011, to impose a sanction; restoring all public assistance lost; and enjoining City respondent to comply with State respondent's decision dated December 10, 2010, to remove a prior infraction and sanction from her record. Petitioner seeks a declaratory judgment that City respondent's imposition of a sanction for her noncompliance with work requirements while she was engaged in unsubsidized employment violated SSL § 342. She seeks a complementary injunction against both State and City respondents' imposition of sanctions on public assistance recipients for missing a single work activity appointment when they are in compliance with assigned work requirements and thus do not actually fail to comply.
Petitioner seeks a further declaratory judgment that City respondent's use of autoposting to reduce or discontinue public assistance due to a missed appointment without an investigation and a review of the assistance recipient's case record violates 18 N.Y.C.R.R. § 385-4.1 and federal and state constitutional due process guarantees. Finally, petitioner seeks a complementary injunction against City respondent's imposition of sanctions on public assistance recipients, unless and until HRA has reviewed the recipient's case record and considered evidence relevant to the charged noncompliance with work requirements. If petitioner prevails in securing this relief, she requests attorneys' fees and expenses pursuant to C.P.L.R. Articles 81 and 83 and 42 U.S.C. § 1988.
State and City respondents separately move to dismiss the petition on the grounds that respondents have provided the relief petitioner sought, C.P.L.R. § 7803, rendering the petition moot. C.P.L.R. §§ 3211(a)(2) and (7), 7804(f). State respondent also moves for a stay of this proceeding and action due to a pending appeal of Puerto v. Doar, 42 Misc. 3d 563 (Sup. Ct. N.Y. Co. 2013). C.P.L.R. § 2201.
III. STATE RESPONDENT'S MOTION
A. Petitioner's Claims Against State Respondent Are Moot.
On January 15, 2013, State respondent issued an Amended Decision on Stipulation After Fair Hearing, amending the decision dated June 28, 2012, and requiring City respondent to withdraw HRA's Notice of Decision dated December 31, 2011, that imposed a sanction reducing petitioner's public assistance and to restore her assistance retroactive to the date of the reduction. Aff. of Arieh Mezoff Ex. 1, at 2-3. State respondent's voluntary reversal of the June 2 012 decision provides the redress petitioner seeks in her single claim against State respondent for depriving petitioner of her right to a hearing according to state regulations and upholding City respondent's December 2011 determination. C.P.L.R. §§ 3211(a)(2) and (7), 7804(f); Santiago Pharm., Inc., 107 A.D.3d 505, 505 (1st Dep't 2013); In re Carl J., 94 A.D.3d 473, 474 (1st Dep't 2012); Callwood v. Cabrera, 49 A.D.3d 394, 394 (1st Dep't 2008).
Although petitioner also seeks to enjoin State respondent along with City respondent from penalizing public assistance recipients for missing a single appointment when they have not actually failed to comply with work requirements, petitioner's single claim against State respondent relates to the conduct of the hearing process in violation of regulatory requirements. Petitioner challenges only State respondent's action upholding City respondent's determination to reduce petitioner's public assistance. She does not claim that State respondent actually imposes sanctions for missing a work activity appointment.
Injunctive relief is dependent on petitioner retaining a substantive claim against State respondent. As petitioner does not claim that State respondent is or imminently will be taking any further action in violation of petitioner's rights, injunctive relief is unavailable against this respondent. Weinreb v. 37 Apts. Corp., 97 A.D.3d 54, 58-59 (1st Dep't 2012); Lemle v. Lemle, 92 A.D.3d 494, 500 (1st Dep't 2012). Therefore State respondent is not a permissible party against whom petitioner may seek the further injunctive relief she seeks against City respondent. See People Care Inc. v. N.Y. Human Resources Admin., 89 A.D.3d 515, 516 (1st Dep't 2011); Solid Waste Servs., Inc. v. New York City Dept. Of Envtl. Protection, 29 A.D.3d 318, 319 (1st Dep't 2006). Since the other relief sought against State respondent has been afforded to petitioner and thus is moot, the court grants State respondent's motion to dismiss the petition against State respondent. C.P.L.R. § 3211(a)(2) and (7).
B. The Request for a Stay
Upon the court's dismissal of petitioner's claim against State respondent, this respondent's motion to stay the proceeding is academic. In re Koziol, 21 N.Y.3d 1056, 1057 (2013); Santiago v. Berlin, 111 A,D.3d at 487; Herskowitz v. Tompkins, 184 A.D.2d 402, 402 (1st Dep't 1992); Midgley v. Goldberg, 2 A.D.3d 735, 736 (2d Dep't 2003). Even were the court to deny dismissal of petitioner's claim against State respondent, however, the issues to be determined in this proceeding are not substantially identical to the issues in Puerto v. Doar, 42 Misc. 3d 563, to warrant a stay of this proceeding pending the outcome of the appeal there.
The petitioner in Puerto v. Doar, against the same State and City parties who are respondents here, challenges the adequacy of the information in the Conciliation Notification and the Notice of Decision regarding the reasons a recipient may show to avoid a reduction or discontinuance of assistance for failing to participate in a work activity. This court held in that action that City respondent's Conciliation Notification and Notice of Decision and 18 N.Y.C.R.R. § 385.11(a)(2), "insofar as they omit that a showing of compliance with . . . work activities is action a public assistance recipient may take to avoid a reduction in assistance, violate SSL § 341(1)(a)." Puerto v. Doar, 42 Misc. 3d at 579. That action emphasizes that establishing unwillfulness or good cause is not the only means to avoid a reduction or discontinuance of assistance.
Because State respondent answered the petition there and had promulgated the regulation and approved the challenged notices used by City respondent, upon converting the proceeding to a plenary action, C.P.L.R. § 103(b) and (c), the court granted summary judgment awarding declaratory and injunctive relief against State respondent. The court enjoined State respondent (1) to amend 18 N.Y.C.R.R. § 385.11(a)(2) to require a conciliation notice to notify recipients of their right to show compliance and (2) from approving notices that fail to notify recipients of their right to show compliance with work activities. C.P.L.R. §§ 409(b), 3212(b) and (e).; Puerto v. Doar, 42 Misc. 3d at 579. As City respondent had not answered there, the court ordered no declaratory or injunctive relief against City respondent, who does not seek a stay of this proceeding.
Under C.P.L.R. § 2201, a pending appeal in one action may warrant a stay in another proceeding only where the parties, issues, and relief sought are "substantially identical" and a stay will avoid the "duplication of effort, waste of judicial resources, and possibility of inconsistent rulings," OneBeacon Am. Ins. Co. v. Colgate-Palmolive Co., 96 A.D. 3d 541, 541 (1st Dep't 2013), by reaching different conclusions from similar evidence. Morreale v. Morreale, 84 A.D. 3d 1187, 118 8 (2d Dep't 2011). See Asher v. Abbott Labs., 307 A.D.2d 211, 212 (1st Dep't 2003). In this proceeding, petitioner does not challenge deficiencies in the Conciliation Notification or the Notice of Decision, so that a decision here will not determine all the questions in the other action, Somoza v. Pecknik, 3 A.D.3d 394, 394 (1st Dep't 2004), nor will the Appellate Division's determination in the appeal dispose of the controversy in this proceeding in any discernible way. See Lessard v. Architectural Group, P.C. v. X & Y Dev. Group, LLC, 88 A.D.3d 768, 770 (2d Dep't 2011); Tribeca Lending Corp. v. Crawford, 79 A.D.3d 1018, 1020 (2d Dep't 2010). Thus, even were State respondent's request for a stay not academic, it is unwarranted.
IV. CITY RESPONDENT'S MOTION
City respondent maintains that, upon withdrawal of the determination dated December 31, 2011, restoration of petitioner's lost benefits, and removal of the determination dated September 23, 2010, the sanction imposed, and the underlying infraction, consistent with State respondent's prior hearing decision, petitioner has been granted all the relief she seeks. City respondent insists that the relief granted eliminates any further controversy between the parties, so that petitioner is no longer entitled to any declaratory or injunctive relief, and her claims are moot. Although City respondent's corrective actions moot petitioner's claim that City respondent violated SSL § 342 by reducing her public assistance for 180 days and failed to comply with State respondent's prior hearing decision, those actions do not negate her claim that City respondent's use of autoposting violates 18 N.Y.C.R.R. § 385-4.1 and constitutional due process.
As an ongoing public assistance recipient required to comply with work requirements, petitioner's unsubsidized part-time employment qualifies as a requisite work activity. SSL § 336(1)(a); 18 N.Y.C.R.R. § 385.9. As long as petitioner meets this qualification and maintains this mandatory work activity with its set schedule as required, City respondent's autoposting practice continually threatens her with a determination by City respondent that, simply because that required schedule conflicted with an HRA appointment, she has not complied with mandatory work activities.
Petitioner unquestionably maintains an interest in protecting her family's entitlement to public assistance, essential to their basic subsistence. Yet, as City respondent's use of the challenged practice in petitioner's case illustrates, her public assistance is continually at risk of reduction by City respondent unless a proceeding such as this one compels City respondent to withdraw a determination to impose sanctions. Requiring petitioner to police City respondent's conduct in this way is neither a cognizable nor a sustainable remedy. Benjamin v. McGowen, 275 A.D.2d 290, 292 (1st Dep't 2000). See People v. David W., 95 N.Y.2d 130, 140 (2000). Petitioner's challenge to respondent's practice therefore presents a genuine dispute over the parties' legal rights and obligations, in which petitioner, if not City respondent as well, maintains a substantial stake regarding the outcome. Long Is. Light. Co. v. Allianz Underwriters Ins. Co., 35 A.D.3d 253, 253 (1st Dep't 2006).
A. Petitioner's Autoposting Claim
18 N.Y.C.R.R. § 358-4.1(a) requires that: "A social services agency must review . . . actions to determine whether the action is correct based upon available evidence included in the applicant's or recipient's case record." Only after that review of the case record is City respondent to send a Notice of Decision informing an applicant or recipient of the action to be taken. 18 N.Y.C.R.R. § 358-4.1(b).
City respondent approved the days and hours of petitioner's part-time employment and was informed by petitioner, through HRA's caseworker and through her telephone message to HRA on the date of the BTW Vendor appointment, of her inability to attend the appointment due to a conflict with that required work, V. Pet. ¶¶ 56-59, Ex. F, at 2. Despite City respondent's duty to ensure that adverse actions are correct before taking them, however, HRA's autoposting system triggered adverse action without its required review of the case record to assure that the action was in fact correct. Had HRA undertaken its required review before issuing the Notice of Decision dated December 31, 2011, reducing petitioner's public assistance, HRA would have recognized that her failure, even if willful, was with good cause. Her case record would have shown that the appointment conflicted with her approved part-time employment and would have shown her attempts to inform City respondent of the conflict.
Even if the restoration of petitioner's benefits divested petitioner of an interest in her claim against autoposting, moreover, an exception to the mootness doctrine permits a decision on an issue that (1) likely will recur, between the parties or between a party and other members of the public; (2) is substantial and novel; and (3) typically will evade judicial review. Coleman v. Daines, 19 N.Y.3d 1087, 1090 (2012); City of New York v. Maul, 14 N.Y.3d 499, 507 (2010). As a current public assistance recipient, petitioner remains subjected to the mandatory work requirements and to the risk of a future reduction or discontinuance of assistance, when an instance of noncompliance automatically leads to a sanction without City respondent first investigating the reason or reviewing the case record. City respondent's use of autoposting in violation of 18 N.Y.C.R.R. § 358-4.1 presents an issue of substantial public interest that likely will recur, yet will evade judicial review, due to respondents' withdrawal of punitive sanctions and restoration of assistance once a proceeding for judicial review brings their errors to light. Coleman v. Daines, 19 N.Y.3d at 1090; Branic Intl. Realty Corp. v. Pitt, 10S A.D.3d 178, 213 (1st Dep't 2013); Lopez v. Evans, 104 A.D.3d 105, 108 n.2 (1st Dep't 2012).
Because petitioner's autoposting claim remains viable, her attendant requests for a declaratory judgment regarding City respondent's use of autoposting and injunctive relief enjoining City respondent from imposing sanctions on public assistance recipients without an investigation and a review of their case record also survive. Her request for injunctive relief enjoining City respondent from imposing sanctions on public assistance recipients who are in compliance with assigned work requirements for missing a single work activity appointment, when the recipients have not actually failed to comply, also relates to her viable autoposting claim. Just as City respondent is required to review recipients' case record before imposing sanctions, so, too, is City respondent required to determine that any instance of noncompliance was willful and without good cause before taking adverse action. SSL §§ 341(b), 342(1) and (2).
B. Petitioner's Request for Further Relief Concerning Her Engagement in Unsubsidized Work
Petitioner seeks a further declaratory judgment that City respondent's imposition of a sanction on her for noncompliance with work requirements while she is engaged in unsubsidized employment violates SSL § 342. Nothing in that statute prohibits City respondent from reducing or discontinuing public assistance due to a recipient's noncompliance with a mandatory work activity when the recipient is engaged in unsubsidized employment. On the one hand, City respondent may not arbitrarily penalize a public assistance recipient for noncompliance with mandatory work activities, without HRA meeting the requirements for determining willfulness and lack of good cause. On the other hand, SSL § 342 nonetheless requires City respondent to take adverse action upon a recipient's willful noncompliance without good cause. See SSL § 335(3); 18 N.Y.C.R.R. §§ 385.6(a), 385.12. Since petitioner is required to engage in work activities as a condition of her receiving public assistance, SSL § 335-b(5)(a); 18 N.Y.C.R.R. § 385.2(a) and (f), she is not immunized from a penalty for any willful noncompliance with mandatory work activities without good cause by virtue of her unsubsidized employment. Therefore the court grants City respondent's motion to dismiss the petition to the extent of dismissing the petition's request for any such relief. C.P.L.R. §§ 3211(a)(7), 7804(f).
C. Petitioner's Claim for Attorneys' Fees and Expenses
City respondent also seeks dismissal of petitioner's claim for attorneys' fees and expenses because petitioner fails to demonstrate that respondents have violated federal law under 42 U.S.C. § 1983, entitling her to fees under 42 U.S.C. § 1988, or that petitioner is a prevailing party against a state agency, entitling her to fees under C.P.L.R. § 8601. City respondent's insistence that HRA is not a state agency misses the mark, however, because petitioner does not seek fees under C.P.L.R. § 8601. City respondent's other grounds for thwarting an attorneys' fees award to petitioner at the outset, by their very terms, are premature. Although the petition does not specify a federal or state constitutional provision, her claim that City respondent's autoposting procedure deprives her of her entitlement to public assistance without due process, as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution as well as Article 1, Section 6, of the New York State Constitution, states a claim under 42 U.S.C. § 1983. Chavis v. City of New York, 94 A.D.3d 440, 442 (1st Dep't 2012); Kahn v. New York City Dept. of Educ., 79 A.D.3d 521, 522 (1st Dep't 2010), aff'd, 18 N.Y.3d 457 (2012). The court has yet to determine that petitioner has not prevailed on this claim, which, if she does prevail, may entitle her to attorneys' fees under 42 U.S.C. § 1988 and to costs and disbursements under C.P.L.R. §§ 8101 and 8303. The court will address petitioner's entitlement to any costs, disbursements, and attorneys' fees at the final disposition of this action on its merits.
V. DISPOSITION
For the reasons explained above, the court grants State respondent's motion to dismiss the petition's single claim against State respondent and denies State respondent's motion for a stay of this proceeding. C.P.L.R. §§ 2201, 3211(a)(2) and (7), 7804(f). The court grants City respondent's motion to dismiss the petition's claims that City respondent violated SSL § 342 by reducing petitioner's public assistance and failed to comply with State respondent's hearing decision and the claim for an injunction against sanctions for willful noncompliance with work requirements while petitioner is engaged in unsubsidized employment. C.P.L.R. §§ 3211(a)(2) and (7), 7804(f). The court otherwise denies City respondent's motion.
City respondent shall serve any answer within 2 0 days after service of this order with notice of entry. See C.P.L.R. §§ 3012(a), 3211(f), 7804(c)-(f). Petitioner shall serve any reply to an answer within 20 days after service of the answer. See C.P.L.R. §§ 3012(a), 7804(c), (d), and (f). Regarding disclosure, either party may move for permission, C.P.L.R. § 408, or the parties may stipulate, to conduct disclosure, and either party may request a preliminary conference from the Part 4 6 Clerk. 22 N.Y.C.R.R. § 202.12. To proceed further to a disposition, either party may move for summary judgment, C.P.L.R. §§ 409, 3212(b), or re-notice the proceeding for a hearing. C.P.L.R. § 7804(f). Absent a motion, if no disclosure is sought or disclosure is concluded, either party may request a pretrial conference from the Part 46 Clerk. C.P.L.R. § 410; 22 N.Y.C.R.R. § 202.26(b) and (c).
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LUCY BILLINGS, J.S.C.