Opinion
March 1, 1971
Judgment, Supreme Court, New York County, entered on October 1, 1969, which granted petitioner's application to annul the respondent Commissioner's determination with a direction to process petitioner's application for a special grant, unanimously reversed, on the law, and the petition dismissed, without costs and without disbursements. In light of such disposition petitioner's cross appeal is dismissed, without costs and without disbursements. Petitioner, a recipient of public assistance under a grant of aid to dependent children since May, 1968, in that month requested a special grant for items of clothing for her children, household equipment and furniture. Petitioner was interviewed in June, 1968 to verify her needs and she alleges there was agreement on the list of items needed. However, no action was taken by the New York City Department of Social Services (Department). In August, 1968, petitioner repeated her request and petitioner asserts she was assured again that her request would receive favorable consideration. Again, no further action was taken by the Department. August 27, 1968 the simplified payment system of cyclical grants was instituted in the City of New York to replace the system of special grants. On or about August 30, 1968 and December 8, 1968 pursuant to such system petitioner received cyclical grants of $100 each. On September 26, 1968, petitioner requested a "fair hearing" before respondent to review the failure of the city department to award petitioner the special grant requested. In affirming the action of the city agency, respondent considered the system of cyclical grants to apply to all applications pending on the effective date of the new system, and that payment thereunder must be considered to have made appropriate provision for the items for which they were granted. On this appeal respondent-appellant urges that the simplified payment system was properly used as a basis for the decision by respondent. Petitioner asserts that she became entitled to the special grant before the cyclical system was introduced, that such system was meant to provide for prospective needs only, that there was an illegal delay of more than the requisite 30 days in disposing of her application which prevented receipt of the grant by petitioner, and respondent is equitably estopped to rely on cyclical payments as satisfying petitioner's needs to any extent. Under section 113 Soc. Serv. of the Social Services Law public welfare districts "are authorized to sponsor, conduct and participate in the operation" of approved research and demonstration projects. On the record this was such an approved project. The rules provide that an applicant such as petitioner is entitled to a fair hearing when there is a failure to determine the applicant's eligibility within 30 days from the date the application is made (see 18 NYCRR 84.3, 18 NYCRR 351.22) . While 18 NYCRR 84.5 states "How request for fair hearing is made. Any clear written or oral communication made to the department by or on behalf of an applicant or recipient requesting review of a social services official's decision, action or failure to act shall constitute a request for a fair hearing if made within 60 days after the action or failure to act complained of", petitioner did not request a fair hearing until September 26, 1968. Obviously this was untimely as to her May, 1968 request (see Matter of Davis v. Kingsbury, 27 N.Y.2d 567). It, however, was timely as to her August, 1968 request. The Department acted on her August, 1968 request within 30 days and their action was timely. The cyclical grant under the simplified payment system was designed to simplify the administration of public assistance programs. The quarterly payments under the system were over and above the regularly recurring monthly grant of assistance, and the project became effective before petitioner requested a fair hearing. Unless petitioner had acquired vested rights in the special grant sought, cyclical payments under the simplified system affected no accrued rights. Petitioner had no fixed right in the special grant system of payment ( cf. Flemming v. Nestor, 363 U.S. 603), nor such a vested interest that the simplified system deprived her of benefits to which she was entitled. Nor can we say that the construction and interpretation by respondent of the simplified payment system and its effect upon applicant was unreasonable, harsh or oppressive. In light of the foregoing the judgment is reversed as previously indicated.
Concur — Stevens, P.J., Capozzoli, Nunez, McNally and Tilzer, JJ.