Substantial evidence to support the determination of an administrative agency cannot consist of mere surmise and speculation (see Matter of Stanco v Toia, 59 A.D.2d 946, supra). The minimum standards of fairness have not been met in light of the failure of the local agency to appear at the fair hearing and present any evidence whatsoever (see Matter of Roach v Toia, 58 A.D.2d 652, 653; Matter of Cedeno v Lavine, 46 A.D.2d 687; Matter of Del Valle v Sugarman, 44 A.D.2d 523, 524). In addition, the State commissioner improperly based the conclusion that petitioner's testimony lacked credibility, in part, on the information contained in petitioner's reapplication for public assistance, a document dehors the fair hearing record (see 18 NYCRR 358.18 [a]; Matter of Henny v Weinberg, 80 A.D.2d 831). Titone, J.P., Gibbons and Niehoff, JJ., concur.
In our opinion, the undifferentiated hearsay evidence adduced at the fair hearing was legally insufficient to overcome petitioner's unequivocal denial of employment. As this court has repeatedly stated, "`[w]hile respondent is not bound strictly by rules of evidence at hearings held by the department, evidence of the type found here does not even approach minimum standards of fairness'" ( Matter of Cedeno v. Lavine, 46 A.D.2d 687; see Matter of Roach v. Toia, 58 A.D.2d 652; Matter ofBolden v. Toia, 55 A.D.2d 677; cf. Matter of Woodley v. Lavine, 54 A.D.2d 912). In addition, as the State commissioner effectively concedes, the respondents were without authority to terminate the grant of assistance to the petitioner's four children based on petitioner's failure to co-operate with the local agency, in the absence of any demonstration of a present lack of need on their part (see Matter of Gunn v. Blum, 48 N.Y.2d 58; Colon v. Shang, 74 A.D.2d 559). Damiani, J.P., Lazer, Gulotta and O'Connor, JJ., concur.
The money order receipt numbers are not shown. The petitioner testified that she received the last money order from her husband in February, 1977; that when he ceased supporting the family, she no longer permitted him to visit the children; that at a proceeding in the Family Court initiated by him to obtain visitation rights, he informed the Family Court Judge that he was not supporting the children because he was unemployed; and that, at the advice of the Family Court Judge, she brought a support proceeding against him which was pending at the time of the fair hearing. In our opinion, the evidence adduced was insufficient to overcome petitioner's testimony that she received no support payments from her husband after February, 1977 (see Matter of Lausell v Lavine, 55 A.D.2d 649; Matter of Ford v Dumpson, 47 A.D.2d 621; Matter of Cedeno v Lavine, 46 A.D.2d 687). However, there may be other ways to prove receipt of the money by petitioner, and we, therefore, remit the matter to the State commissioner to provide that opportunity (see Matter of Lausell v Lavine, supra).
She was not told to report to a job interview and she did not fail to accept referral to a public works project. The respondents do not controvert this testimony in any way. The "evidence" against petitioner consists of nothing but hearsay (cf. Matter of Del Valle v Sugarman, 44 A.D.2d 523), and although administrative hearings are not limited to strict court rules in the reception of evidence, it is nonetheless basic that the determination must be supported by some substantial evidence which is acceptable in a court of law (see Matter of Schadt v Sardino, 48 A.D.2d 171, 174). Evidence of the type found here does not even approach minimum standards of fairness (see Matter of Cedeno v Lavine, 46 A.D.2d 687). We note that the petitioner has not established her right to the declaratory relief sought in her petition (cf. Matter of Jones v Berman, 37 N.Y.2d 42, 57). Hopkins, J.P., Shapiro, Hawkins and Suozzi, JJ., concur.
The only witness called by the local agency was its representative who had no knowledge of the facts other than those gleaned from the report. "`While respondent is not bound strictly by rules of evidence at hearings held by the department, evidence of the type found here does not even approach minimum standards of fairness'" (see Matter of Cedeno v Lavine, 46 A.D.2d 687; Matter of Del Valle v Sugarman, 44 A.D.2d 523). Since the State agency knew the identity of the landlord, he should have been subpoenaed to appear at the hearing. The adverse decision affected not only the petitioner, but her two innocent infant children who had a vital stake in the outcome of the proceeding (see Matter of Bernard v Lavine, 48 A.D.2d 616). Hopkins, Acting P.J., Martuscello, Cohalan, Margett and Shapiro, JJ., concur.
The evidence adduced was insufficient to overcome petitioner's denial. There may be other ways, however, to prove receipt of the money by petitioner, and we remit to provide that opportunity (see Matterof Ford v Dumpson, 47 A.D.2d 621; Matter of Cedeno v Lavine, 46 A.D.2d 687). Latham, Acting P.J., Damiani, Hawkins and O'Connor, JJ., concur.
However, the validity of the "Fires and Disasters" report was not contested at the hearing and thus petitioner was in no way prejudiced by the failure to produce either person as a witness. This is especially so since the respondent city commissioner did not even have to introduce the aforementioned report — the burden being on petitioner. Finally, this court's decision in Matter of Cedeno v Lavine ( 46 A.D.2d 687) is not applicable. Cedeno involved an attempt by the New York State Department of Social Services to discontinue a grant of aid to dependent children. When that is the case, the agency must produce substantial evidence to justify its action, since it is depriving someone of something which he is already receiving.
The local agency rested its case upon a complaint from an anonymous source and an unsigned registration plate record. Such evidence, standing alone, clearly fails to satisfy the test of substantial evidence (cf. Matter of Cedeno v Lavine, 46 A.D.2d 687; Matter of Del Valle v Sugarman, 44 A.D.2d 523). Latham, Acting P.J., Damiani, Christ, Shapiro and Titone, JJ., concur.
We have previously stated that while respondent is not bound strictly by rules of evidence, minimum standards of fairness require that the petitioner, who here denied the allegations of the agency, be confronted with someone who had some knowledge of the facts. (Matter of Del Valle v Sugarman, 44 A.D.2d 523; see, also, Matter of Cedeno v Lavine, 46 A.D.2d 687.) Concur — Stevens, P.J., Kupferman, Murphy, Tilzer and Capozzoli, JJ.