IN RE: Brian Nesby

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

IN RE: Brian Nesby, Petitioner, v. David A. Hansell, as Commissioner of the New York State Office of Temporary and Disability Assistance, et al., Respondents.


Decided: January 14, 2010

Saxe, J.P., Friedman, Moskowitz, Freedman, JJ. John C. Gray, South Brooklyn Legal Services, Brooklyn (Catherine F. Bowman of counsel), for petitioner.

Andrew M. Cuomo, Attorney General, New York (Marion R. Buchbinder of counsel), for David A. Hansell, respondent.

Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for municipal respondents.


Determination of the New York State Office of Temporary and Disability Assistance, dated January 15, 2008, which upheld the decision, rendered after a fair hearing, of the same agency, dated October 10, 2007, upholding the determination of the New York City Human Resources Administration that petitioner was not entitled to any refund from his initial Supplemental Security Income (SSI) payment, unanimously annulled, on the law, without costs, and the petition brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Leland DeGrasse, J.], entered April 18, 2008) granted to the extent of directing respondents to refund $5,681.20 to petitioner.

Petitioner challenges the amounts the state and local social services agencies retained from his first retroactive federal SSI benefit payment to recoup payments he received in March, April and May of 2006 (during the pendency of his application for SSI benefits) as made under New York State's Safety Net Assistance (SNA) program (Social Services Law §§ 158[1],[2];  211[5];  18 NYCRR 370.2[b][5][ii] ) and the federal interim assistance reimbursement program (42 USC § 1383[g];  see 18 NYCRR 370.2[b][5][i];  353.2[a][5] ).   The decision after hearing by respondent Office of Temporary and Disability Assistance (affirmed on administrative appeal) that all the funds paid on petitioner's behalf during the three months in question were recoverable as interim assistance is not supported by substantial evidence.   Petitioner contended that those payments were not recoverable by respondents to the extent they were financed by federal funds.   The record evidence submitted by respondents, while showing payments on petitioner's behalf, failed to establish that the source of those payments was exclusively state and city funds, and also failed to explain the sudden dramatic increases in the amounts of benefits petitioner received during the period in issue.   We note that the computer records that respondents placed in evidence at the hearing do not, on their face, identify the source of the funds paid to petitioner or describe the purpose of the payments.   Moreover, respondents failed to place in the administrative record any material establishing the extent to which the payments came from state and city funds.





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