Opinion
June 20, 1996
Appeal from the Supreme Court, New York County (Carol Arber, J.).
Respondents' claim that the underpayments found by the Administrative Law Judge were eliminated by subsequent overpayments was never raised before the Administrative Law Judge, who made no findings as to the amount of benefits to which petitioner was entitled, but only that the City respondent improperly reduced benefits without notice. Respondents, who did not appear at the Administrative Fair Hearing, may not decide on their own, without affording petitioner an opportunity to contest their position, that the deficiency was made up, and we remand to the Supreme Court for a determination on that issue. Petitioner should have been awarded attorneys' fees, since she sought relief on both State and Federal grounds, her Federal claim that respondents' lack of notice deprived her of the due process of law was not wholly insubstantial, she was clearly the prevailing party and respondents have not demonstrated any special circumstances that would render such an award unjust ( see, Matter of Thomasel v. Perales, 78 N.Y.2d 561). We have considered respondents' remaining arguments and find them to be without merit.
Concur — Ellerin, J.P., Rubin, Kupferman, Williams and Mazzarelli, JJ.