Opinion
3755.
Decided June 24, 2004.
Judgment (denominated an order), Supreme Court, New York County (Herman Cahn, J.), entered October 29, 2002, which denied the petition and dismissed this article 78 proceeding to recover Supplemental Security Income (SSI) payments, unanimously affirmed, without costs.
Urban Justice Center, New York (Craig S. Acorn of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Ralph Janzen of counsel), for respondent.
Before: Nardelli, J.P., Lerner, Friedman, Marlow, Gonzalez, JJ.
Petitioner's argument that respondent New York City Human Resources Administration (HRA) received a "windfall" because it reimbursed itself for four months during which it made no interim assistance payments to him is precluded by Matter of Stevens v. Wing ( 293 A.D.2d 49, lv denied 98 N.Y.2d 616). Contrary to petitioner's claim, his case is indistinguishable from Stevens, where one of the petitioners in that case "did not receive any [interim assistance] for July-September 1996, but his SSI retroactive payment did include benefits for that period" ( id. at 51). HRA would receive a "windfall" only under the month-to-month method of accounting; under the lump-sum method, which was approved in Stevens, HRA is simply reimbursing itself for all the money that it spent on petitioner.
To the extent petitioner is arguing that some of HRA's interim assistance payments were not provided to meet his basic needs, his argument is unpreserved ( see e.g. Gregory v. Town of Cambria, 69 N.Y.2d 655, 657). In any event, it is unavailing. The definition of "payments for basic needs" includes safety net assistance ( see 18 NYCRR 353.2[a][2][i]). On the form requesting a fair hearing, petitioner implicitly acknowledged that he had been receiving safety net assistance.
Petitioner's contention that HRA's September 1999 payment may have been for rent arrears is unpreserved ( see Gregory, supra). His argument that HRA's payments for October-December 1999 and February-March 2000 were "inordinately high" is likewise unpreserved. Petitioner waived the argument that HRA failed to explain these payments because he declined the ALJ's offer to adjourn the hearing until HRA could provide a more informed representative.
Petitioner's claim that the September 1999 payment may have been a correction for an underpayment outside the reimbursement period rests on sheer speculation. Petitioner gave no testimony to that effect at the hearing, and there is no evidence that petitioner, who was represented by counsel below, requested his case file from HRA before the hearing, even though he could have done so ( see 18 NYCRR 358-3.7[a][1] 358-4.2[d]).
Because we previously dismissed petitioner's appeal against the New York State Office of Temporary and Disability Assistance (OTDA), we decline to consider his argument that he was denied due process at the OTDA hearing ( see e.g. Matter of Holland v. New York City, 271 A.D.2d 609, 610). We have considered petitioner's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.