Indeed, several courts have addressed issues analogous to the question raised by the plaintiff. For example, in Cruz v. Lavine, 45 A.D.2d 720, 356 N.Y.S.2d 334 (2d Dep't. 1974), the court held invalid a notice that recited an incorrect charge as the basis for a reduction of benefits. Citing Murray v. Murphy, 24 N.Y.2d 150, 247 N.E.2d 143, 299 N.Y.S.2d 175 (1969).
Second, the PRB may interpret rule 7.5.6 in a manner that does not bar it from pursuing further administrative action against petitioner ( see Matter of Herzog v Joy, 74 AD2d 372, 375, affd 53 NY2d 821 [administrative agency's interpretation of its own regulations entitled to "the greatest weight"]). For instance, the PRB could take the position that the proceeding was commenced timely with respect to the original charges and an amended charge, such as one for failure to report, relates back to those timely-commenced charges. Third, in Murray, the Court of Appeals determined that where a person was denied due process because of insufficient notice of the nature of the administrative charges against the person, the appropriate remedy is a new hearing ( Murray, 24 NY2d at 158 ["Having been denied due process, (petitioners) are entitled to a new hearing"]; see Matter of Rivera v Rozzi, 149 AD2d 514; Montrois v City of Watertown, 115 AD2d 298; Cruz v Lavine, 45 AD2d 720). The dissent cites no authority to the contrary.
In any event, the argument is without merit. The notice denying the petitioner's application, inter alia, for medical assistance benefits constituted "adequate notice" under the relevant regulations ( 18 NYCRR 358-2.2; see Matter of Capek v. Blum, 76 AD2d 924; Cruz v. Lavine, 45 AD2d 720; see Matter of Ector v. Blum, 80 AD2d 931). Accordingly, the relevant 60-day period of limitation was not tolled by defective notice ( see Matter of Zellweger v. New York State Dept. of Social Servs., 74 NY2d 404; Matter of United Hebrew Geriatric Ctr. v. DeBuono, supra).
We also reject petitioners' additional due process claim that they were denied an independent review of the record by the DHCR Commissioner because the verbatim transcript of the hearing was not yet available at the time of the Commissioner's consideration of the matter. There is no specific requirement that the Commissioner review the verbatim transcripts of an administrative hearing and due process requirements were satisfied in the present case by the availability of the entire record, which included tape recordings of the hearing, for review by the Commissioner (see, Matter of Di Marsico v. Ambach, 48 N.Y.2d 576, 582; People ex rel. Ragsdale v. Mantello, 168 A.D.2d 925; cf., Cruz v. Lavine, 45 A.D.2d 720). Respondent's determination was supported by substantial evidence (Matter of Berenhaus v. Ward, 70 N.Y.2d 436; Matter of Jeremias v. Sander, supra), and the multiple penalties imposed based upon numerous individual acts of harassment within a larger course of conduct were neither illegal nor inappropriate (Matter of Hartman v. New York State Div. of Hous. Community Renewal, 158 A.D.2d 330, lv denied 76 N.Y.2d 705).
After the close of the hearing, the respondent DEC was granted leave to amend its complaint to demand an additional penalty of $153,000, predicated upon the petitioner's having knowingly and willfully failed to employ the alternative method of wastewater treatment for a period of 153 days. We find that the addition of this charge after the close of the hearing deprived the petitioner of its due process right to notice of the charges against it (see, Matter of Murray v. Murphy, 24 N.Y.2d 150, 157; Matter of Sulzer v. Environmental Control Bd., 165 A.D.2d 270; Matter of Rivera v. Rozzi, 149 A.D.2d 514; People v. American Motor Club, 133 A.D.2d 593; Cruz v. Lavine, 45 A.D.2d 720). Therefore, the additional penalty of $153,000 is also annulled. Balletta, J.P., Rosenblatt, Miller and Ritter, JJ., concur.
Even amendment at the time of the administrative hearing violates constitutionally required due process. (See, e.g., Cruz v. Lavine, 45 A.D.2d 720.) Moreover, where there is a denial of "such a fundamental constitutional right as the right to be put on notice of the charges made, prejudice will be presumed".
A recipient of public assistance must be given timely and adequate notice detailing the reasons for a proposed termination and effective opportunity to defend the charges ( Goldberg v. Kelly, 397 U.S. 254). Low-rent housing is a basic human need ( Matter of Vinson v. Greenburgh Housing Auth., 29 A.D.2d 338, 340, affd 27 N.Y.2d 675) and an interest to which due process rights apply ( Escalera v. New York City Housing Auth., 425 F.2d 853, cert den 400 U.S. 853; Matter of Hines v. New York City Housing Auth., 67 A.D.2d 1000). Specific grounds constituting the basis for termination of a public housing authority tenancy must be stated in the written eviction notice (Public Housing Law, § 156-c). Adequate notice, including consistency in the grounds relied upon for agency action, is a prerequisite to valid termination of public assistance ( Cruz v. Lavine, 45 A.D.2d 720). The Binghamton Housing Authority had a known policy of initiating an eviction whenever a fire report indicated a child-started fire had occurred. It was logical for petitioner to assume the "Possession" notice she received two days after the fire was based on that fire. However, it was not until summation during her hearing that a "propensity and fascination for fire" on the part of her son, negligence and lack of responsibility on the part of petitioner were alleged as reasons for the eviction.
"Notice to a recipient which specifies the wrong charge as the basis of a welfare grant reduction does not comply with the regulatory standard or the constitutional standards of due process, because `even in [the administrative] forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged' ( Matter of Murray v. Murphy, 24 N.Y.2d 150, 157 [bracketed matter supplied]). The notice which petitioner received that her grant was to be reduced stated the reason therefor as `rent duplication' ( 18 NYCRR 352.7 [g] [1]), but at the hearing this basis for the reduction was changed to `rent advancement' (see 18 NYCRR 352.7 [g] [7]). Permitting such an amendment deprived petitioner of notice and consequently of constitutionally required due process (cf. Goldberg v. Kelly, 397 U.S. 254)." ( Cruz v Lavine, 45 A.D.2d 720; accord Matter of Colon v Blum, 81 A.D.2d 637, 638.) Concur — Carro, Asch and Silverman, JJ.
In the instant matter, although the notice was wholly devoid of any reference to a claimed violation of the State regulation requiring disclosure of a recipient's resources, the determination herein was based, inter alia, upon such ground. This court in Matter of Colon v. Blum ( 81 A.D.2d 637, 638) in defining the required specificity of such notice, held as follows: "A recipient of public assistance must have timely and adequate notice regarding a proposed discontinuance of assistance, including details of the reasons for the proposed action (18 NYCRR 358.8 [a]); the notice must also inform the recipient of the issues which are to be the subject of the hearing (18 NYCRR 358.11 [e]). A notice specifying the wrong charge as the basis for a reduction in benefits does not comply with the regulatory standard, nor with the constitutional standards of due process (see Cruz v. Lavine, 45 A.D.2d 720)." In view of the constitutional deficiency of the notice in failing to adequately advise the petitioner of all the issues which were to be the subject of the hearing, the determination made was wholly without legal effect, and it would be inappropriate to now consider any of the questions of fact in the matter (see, e.g., Matter of Skerret v. Berger, 55 A.D.2d 915; Matter of Ryan v. New York State Dept. of Social Servs., 40 A.D.2d 867).
Clearly the notice of intent to discontinue did not inform petitioner that recoupment was sought and that withholding of information was the charge. A notice specifying the wrong charge as a basis for reduction in benefits does not comply with the State commissioner's regulations nor with constitutional standards of due process ( Matter of Colon v. Blum, 81 A.D.2d 637; Cruz v Lavine, 45 A.D.2d 720). Contrary to the contentions of the State commissioner, the hearing did not apprise petitioner of the local agency's real complaint and planned action (cf. Matter of White v. D'Elia, 80 A.D.2d 874), but, in fact, all parties treated the hearing as one for discontinuance, not recoupment, based on petitioner's inclusion in the Social Security system, not her failure to notify. Consequently, the determination as to recoupment is not based on substantial evidence in the record.