IN RE: David BATTAGLIA (2008)

 Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination of the Hearing Officer affirming respondent's decision denying his application for increased funding on the ground that it is not supported by substantial evidence (see CPLR 7803[4] ).   Respondent concedes that the Hearing Officer misconstrued both respondent's policy with respect to vocational rehabilitation services for persons seeking to be self-employed and petitioner's request for relief pursuant to that policy.   We note in addition that the Hearing Officer issued his determination prior to the deadline for the parties' submissions of legal memoranda and therefore did not have the benefit of those submissions.  “[A] reviewing court, in dealing with a determination ․ [that] an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.   If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” (Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758, 570 N.Y.S.2d 474, 573 N.E.2d 562 [internal quotation marks omitted];  see Matter of Montauk Improvement v. Proccacino, 41 N.Y.2d 913, 394 N.Y.S.2d 619, 363 N.E.2d 344;  Matter of Stone Landing Corp. v. Board of Appeals of Vil. of Amityville, 5 A.D.3d 496, 497-498, 773 N.Y.S.2d 103).   We therefore annul the determination and remit the matter to respondent for the Hearing Officer to make a new determination on the same evidence based upon respondent's policy with respect to vocational rehabilitation services for persons seeking to be self-employed and petitioner's request for relief pursuant to that policy and after receipt and consideration of legal memoranda.

It is hereby ORDERED that the determination is unanimously annulled on the law without costs and the matter is remitted to respondent for further proceedings.

MEMORANDUM: