Opinion
No. TP 07-01536.
March 14, 2008.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [Kevin M. Dillon, J.], entered July 13, 2006) seeking, inter alia, to annul a determination of respondent. The determination denied petitioner's application for additional self-employment funds.
NEIGHBORHOOD LEGAL SERVICES, INC., BUFFALO (KAREN WELCH OF COUNSEL), FOR PETITIONER.
ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (WILLIAM E. STORRS OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Martoche, Peradotto, Pine and Gorski, JJ.
It is hereby ordered that the determination is unanimously annulled on the law without costs and the matter is remitted to respondent for further proceedings in accordance with the following memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination of the Hearing Officer affirming respondent's decision denying his application for increased funding on the ground that it is not supported by substantial evidence ( see CPLR 7803). Respondent concedes that the Hearing Officer misconstrued both respondent's policy with respect to vocational rehabilitation services for persons seeking to be self-employed and petitioner's request for relief pursuant to that policy. We note in addition that the Hearing Officer issued his determination prior to the deadline for the parties' submissions of legal memoranda and therefore did not have the benefit of those submissions. "[A] reviewing court, in dealing with a determination . . . [that] an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis" ( Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758 [internal quotation marks omitted]; see Matter of Montauk Improvement v Proccacino, 41 NY2d 913; Matter of Stone Landing Corp. v Board of Appeals of Vil. of Amityville, 5 AD3d 496, 497-498). We therefore annul the determination and remit the matter to respondent for the Hearing Officer to make a new determination on the same evidence based upon respondent's policy with respect to vocational rehabilitation services for persons seeking to be self-employed and petitioner's request for relief pursuant to that policy and after receipt and consideration of legal memoranda.