Opinion
June 5, 1995
Appeal from the Supreme Court, Queens County (Kassoff, J.).
Ordered that the judgment is modified by deleting the provision thereof which awarded the petitioner attorney's fees in the sum of $17,850, and substituting therefor a provision denying that branch of the petition; as so modified, the judgment is affirmed, without costs or disbursements.
The petitioner received public assistance from the New York City Department of Social Services while her application for Supplemental Security Income (hereinafter SSI) was pending with the Social Security Administration. Upon approval of her SSI application, the initial retroactive payment, covering the same period during which she had been receiving public assistance, was sent directly to the New York City Department of Social Services (hereinafter the City DSS). After receiving notification from the City DSS that it was retaining the entire amount of the initial SSI payment as reimbursement for the public assistance she had received, the petitioner requested a fair hearing to determine if she was entitled to a refund and also requested copies of certain documents from the City DSS. The City DSS failed to respond to the petitioner's document request, and failed to appear at the fair hearing. Based on the evidence that the petitioner presented at the fair hearing, the Commissioner of the New York State Department of Social Services (hereinafter the Commissioner) determined that the petitioner was entitled to the full amount of the initial SSI check and directed the City DSS to issue a refund in that amount to the petitioner. When the City DSS failed to comply with the Commissioner's determination, the petitioner commenced the instant CPLR article 78 proceeding.
The City DSS was required to provide a timely response to the petitioner's document request prior to the fair hearing (see, 18 NYCRR 358-3.7 [b] [2]; 358-4.2 [c]), and was required to appear at the fair hearing (see, 18 NYCRR 358-4.3 [b]). Furthermore, after the Commissioner rendered her determination, the City DSS did not move to reopen the fair hearing for purposes of completing the record nor did it move to stay the determination pending review. Therefore, it was required to comply with the Commissioner's determination (see, Social Services Law § 22 [a], [c]; see also, 18 NYCRR 358-6.6 [b]; Matter of Oliveras v. Grinker, 170 A.D.2d 510).
However, we find that the special circumstances of this case render the award of attorney's fees against the Commissioner unjust (see, CPLR 8601 [a]; cf., Matter of Thomas v. Coughlin, 194 A.D.2d 281, 283).
There is no merit to the appellants' remaining contentions. Sullivan, J.P., O'Brien, Thompson and Hart, JJ., concur.