Opinion
March 1, 1994
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
This action arises out of defendant Department of Social Services' termination of its prior practice of conducting home hearings for persons unable, due to physical or mental disability, to travel to central hearing sites to participate in statutory fair hearings.
Class certification was appropriately granted, notwithstanding the governmental entity doctrine (Matter of Martin v. Lavine, 39 N.Y.2d 72, 75; Matter of Kelly v. Bane, 192 A.D.2d 236, 245), in view of defendants' demonstrated reluctance to extend the temporary injunctive relief to individuals other than the named plaintiffs (see, Matter of Lamboy v. Gross, 126 A.D.2d 265, 273-274). The "right to request a fair hearing cannot be limited or interfered with in any way" ( 18 NYCRR 358-3.1 [a]), and includes the right to "appear and participate at [the] conference and fair hearing [and] to explain your situation" ( 18 NYCRR 358-3.4 [g]), and "to have the fair hearing held at a time and place convenient to you as far as practicable, taking into account circumstances such as your physical inability to travel to the regular hearing location." ( 18 NYCRR 358-3.4 [j].) Clearly, plaintiffs have demonstrated irreparable harm by the termination of home hearings, especially in light of defendants' practice of deeming their requests for a home hearing abandoned or waived when they did not appear at the central hearing sites. Furthermore, plaintiffs have demonstrated a likelihood of success on the merits of their claim that they were statutorily entitled to a fair hearing even if unable to travel to the central hearing sites, since defendants, at that time, had no alternative procedures, and the substantial nature of the threatened deprivations in the documented cases weighs heavily when compared to the fiscal and staffing problems cited by defendants.
Concur — Murphy, P.J., Ross, Rubin and Tom, JJ.
I join in the affirmance but with the caveat that there appears to be no justification for the preliminary injunction's provision entitling a claimant, faced with an adverse determination after a telephonic fair hearing, to an at-home hearing, de novo. On the basis of this record there is no reason to assume that a telephonic hearing involved a credibilty issue, which is the rationale for the provision permitting a de novo in-person hearing, or that, even if such issue existed, it was unfairly decided. Since, however, the preliminary injunction at issue follows in the wake of numerous temporary restraining orders, each different from the other and each tailored to meet specific concerns, it is obvious that the IAS Court is closely monitoring the situation and will be guided by the results generated by implementation of the present order. Finally, it should be noted, we are dealing here with an award of provisional relief only.