IN RE: JASON ENDERS (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to compel respondents to provide temporary housing assistance (THA) placement to him and his five-year-old child immediately. Petitioner had initially requested a fair hearing before respondent New York State Office of Temporary and Disability Assistance (see generally Social Services Law § 22; 18 NYCRR part 358). Upon being advised by that agency that the fair hearing would not be held until two weeks later due to scheduling constraints, petitioner commenced this proceeding in order to address the immediate need for shelter. Supreme Court granted a temporary restraining order precluding respondent Erie County Department of Social Services from denying petitioner and his child THA placement during the pendency of the proceeding. Respondents opposed the requested relief and sought to dismiss the petition, asserting, inter alia, that petitioner had failed to exhaust his administrative remedies. The court, inter alia, granted the petition in part and denied it in part, directing respondents to provide petitioner and his child THA placement together, during the periods that petitioner has custody of the child. Respondents Erie County Department of Social Services and Karen Rybicki, as Commissioner of Erie County Department of Social Services (collectively, DSS), as limited by their brief, appeal from the judgment insofar as it granted the petition in part, contending that the petition should have been dismissed for failure to exhaust administrative remedies. We affirm.

While “[i]t is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law,” “[t]he exhaustion rule ․ is not an inflexible one [and] ․ is subject to important qualifications” (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]). Thus, a petitioner need not “exhaust all administrative remedies before seeking judicial review [where] an agency's action is challenged as either unconstitutional or wholly beyond its grant of power ․ or when resort to an administrative remedy would be futile ․ or when its pursuit would cause irreparable injury” (Matter of Strong v Martuscello, 231 AD3d 1502, 1503 [4th Dept 2024]; see Watergate II Apts., 46 NY2d at 57).

Here, petitioner commenced the CPLR article 78 proceeding seeking, inter alia, temporary housing and to prevent his child from being separated from him during a period of homelessness. “In this State, assisting the needy is a matter of constitutional command, not legislative grace” (Lovelace v Gross, 80 NY2d 419, 424 [1992]; see NY Const, art XVII, § 1). “The fair hearing procedure, although adequate to satisfy aggrieved parties in most instances, lacks the immediacy that situations involving emergencies warrant” (Matter of Jones v Berman, 37 NY2d 42, 56 [1975]) because the “termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while [the recipient] waits” (Goldberg v Kelly, 397 US 254, 264 [1970]). Inasmuch as a petitioner “[i]s not obligated to exhaust [their] administrative remedies by requesting a fair hearing ․ prior to seeking judicial assistance [where] to do so would have been a futile effort due to time constraints” (Matter of Termini v Hackett, 80 AD2d 730, 731 [4th Dept 1981]; see Matter of Uzwij v Robins, 133 AD2d 695, 697-698 [2d Dept 1987]), we conclude that, under the circumstances of this case, the court did not err in denying DSS's request to dismiss the petition.

We have reviewed DSS's remaining contentions and conclude that they lack merit.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court