IN RE: Application of Viktoriya SHAKHNOVSKAYA (1997)

Determination of respondent Acting Commissioner of the New York State Department of Social Services discontinuing petitioner's home relief, food stamp and medical assistance benefits, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Paula Omansky, J.], entered August 5, 1996), dismissed, without costs.

There is no merit to petitioner's claim that respondents discontinued her benefits without making a determination regarding the acceptability of her babysitting job as a substitute for the Work Experience Program (WEP) assignment.   At the hearing, although petitioner submitted a letter from her babysitter employer, she never argued that this job should be substituted for her WEP assignment, but argued instead that the “real reason” for her noncompliance was that the WEP job conflicted with her ability to attend school full time.   Nevertheless, the ALJ noted that petitioner “only makes $40.00 per week․   Need $85.00 a week to be exempted”, implying rejection of her babysitting job as an alternative to the WEP assignment, an inference further supported by the circumstance that petitioner was referred to a fair hearing despite having proposed this alternative at prehearing conferences.   Defendant's decision to disallow substitution is a discretionary one (Social Services § 164[7] ), at least where, as here, the applicant is working less than 30 hours a week and earning less than the minimum wage (18 NYCRR 385.2 [b][11] ), and is supported here by substantial evidence.   We have considered petitioner's other arguments and find them to be without merit.

MEMORANDUM DECISION.