SHELTON v. WING

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Vincent SHELTON, Petitioner, v. Brian J. WING, as Commissioner of New York State Department of Social Services, and Richard F. Schauseil, as Director of Monroe County Department of Social Services, Respondents.

Decided: December 31, 1998

Present:  DENMAN, P.J., HAYES, BALIO, BOEHM and FALLON, JJ. Public Interest Law Office of Rochester by Susan Silverstein, Rochester, for Petitioner. Dennis C. Vacco, Attorney General by Frank Walsh, Albany, for Respondent-Wing. Monroe County Attorney's Office by Richard Marchese, Jr., Rochester, for Respondent-Schauseil.

 Petitioner appeals from a determination following a fair hearing reducing his public assistance grant in order to recoup an overpayment made to him based on the failure of the Monroe County Department of Social Services (DSS) to include his wages when calculating the amount of his public assistance.   On appeal, petitioner contends that DSS should be estopped from recouping the overpayment.   Petitioner failed to raise that contention at his administrative hearing, however, and the scope of this CPLR article 78 proceeding following a fair hearing “ ‘is limited to review of the issues raised and addressed in that hearing’ ” (Matter of Vicari v. Wing, 244 A.D.2d 974, 976, 665 N.Y.S.2d 209, quoting Matter of International Fid. Ins. Co. v. Hartnett, 199 A.D.2d 1084, 607 N.Y.S.2d 753;  see, Matter of Mugalli v. New York State Liq. Auth., 256 A.D.2d 1116, 684 N.Y.S.2d 727 [decided herewith] ).   In any event, estoppel generally “cannot be invoked against a governmental agency to prevent it from discharging its statutory duties” (Matter of New York State Med. Transporters Assn. v. Perales, 77 N.Y.2d 126, 130, 564 N.Y.S.2d 1007, 566 N.E.2d 134), and this is not one of those “rarest [of] cases” in which estoppel would be appropriate (Matter of Parkview Assocs. v. City of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372;  see, Ippolito v. City of Buffalo, 195 A.D.2d 983, 984, 600 N.Y.S.2d 882;  Matter of Casella v. Crosson, 178 A.D.2d 963, 963-964, 578 N.Y.S.2d 322).

Determination unanimously confirmed without costs and petition.