IN RE: the Application of Shanell Yarde

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Supreme Court, Albany County, New York.

IN RE: the Application of Shanell Yarde, on behalf of herself and as next Friend of her minor niece, A.W.B., Petitioner-Plaintiff, v. Samuel D. Roberts, as Commissioner of the New York State Office of Temporary and Disability Assistance, and THERESA BEAUDOIN, as Commissioner of the Rensselaer County Department of Social Services, Respondents-Defendants.


Decided: December 15, 2017

EMPIRE JUSTICE CENTER Attorneys for Petitioner Susan Antos, Esq., and Saima A. Akhtar, Esq., Of Counsel 119 Washington Avenue, 3rd Floor Albany, New York 12210 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorneys for Respondent Samuel D. Roberts Kyle W. Sturgess, AAG, Of Counsel The Capitol Albany, New York 12224-0341 STEPHEN A. PECHENIK Rensselaer County Attorney Attorneys for Respondent Theresa Beaudoin Christina F. Arriaga, Esq., Of Counsel 1600 Seventh Avenue Troy, New York 12180

Petitioner-plaintiff Shanell Yarde (‘petitioner‘) brings this hybrid Article 78 and declaratory judgment proceeding to annul an administrative decision issued by respondent-defendant Samuel Roberts as Commissioner of the New York State Office of Temporary and Disability Assistance (‘OTDA‘) denying certain benefits following a ‘fair hearing.‘ Petitioner also seeks a declaration that respondent-defendant Theresa Beaudoin, as Commissioner of the Rensselaer County Department of Social Services (‘DSS‘), employs practices that violate statutory and regulatory mandates for responding to inquiries about, and determining eligibility for, certain public assistance programs. Petitioner also seeks to ‘permanently enjoin‘ DSS to act in accordance with applicable statutes and regulations and to train its staff to adhere to applicable state procedures, together with costs and legal fees related to this proceeding. OTDA and DSS have answered the petition, opposed all demanded relief and moved for summary judgment dismissing the declaratory judgment action.

This case arises from petitioner's request for certain public assistance benefits on behalf of her minor niece, for whom petitioner has been caring since 2014. Petitioner was granted primary physical custody of her niece by Albany County Family Court on February 10, 2015. In 2015, petitioner was already a recipient of the Supplemental Nutrition Assistance Program (SNAP) administered by DSS. Shortly after petitioner was granted custody of her niece, she telephoned DSS to ‘add‘ her niece to her ‘SNAP case‘ and ‘get any kind of assistance‘ available for her niece. DSS instructed petitioner to visit its office to complete an application. On June 29, 2015, petitioner visited the DSS office and provided her SNAP caseworker with the custody order. On that date, petitioner explained to the DSS representative that she had been caring for her sister's child and needed to get any available assistance for her. DSS conducted a July, 2015 telephone recertification interview with petitioner concerning SNAP benefits; petitioner claims that she specifically asked the caseworker if there were other benefits available for her niece and that she was erroneously advised that the food stamp benefit under SNAP was the only additional available benefit. DSS ‘added‘ petitioner's niece to the SNAP benefits and petitioner began receiving SNAP benefits for her niece in addition to SNAP benefits she already received for herself and her three children.

Petitioner completed classes required to become a certified foster care provider for her niece in the mistaken belief that doing so would allow her to obtain additional financial assistance to provide for her niece, and she ultimately was certified as a foster care provider. In January 2017, another DSS representative told petitioner that while she was ineligible for financial assistance through foster care due to her pre-existing custody of her niece, she was eligible for an ‘other than grantee‘ (‘OTG‘) public assistance grant 1 . On January 25, 2017, petitioner returned to the DSS office and specifically requested an OTG grant for her niece, after which she was provided an application for public assistance on behalf of her niece for the first time. Petitioner completed the public assistance application to obtain an OTG grant and submitted it to DSS on January 27, 2017. She also requested a ‘fair hearing‘ to seek retroactive benefits on behalf of her niece based upon her previous requests to DSS for financial assistance to defray costs associated with caring for her niece. The OTG grant was approved in response to the January 2017 application.

On February 22, 2017, a ‘fair hearing‘ was held before an OTDA representative who received testimony from petitioner and a DSS senior welfare examiner. In relevant part, the DSS representative testified at the hearing that caseworkers do not advise social services applicants or recipients about programs or benefits for which they may be eligible, instead relying upon the applicant or recipient to specify which program or benefit they seek. The same witness testified that DSS did not make client information pamphlets concerning benefits (including the OTG grant) readily available in the client waiting room at the DSS office because doing so created a ‘mess.‘

In the decision after fair hearing dated February 28, 2017, the commissioner's representative made various factual findings that are material to disposition of this proceeding. In relevant part, the administrative decision confirmed the chronology of petitioner's request for assistance, beginning with petitioner's telephone contact with DSS requesting that her niece be added to her SNAP case together with ‘any other assistance‘ that she could get from DSS for her niece. The decision also credited petitioner's claim that she consistently asked for ‘any other assistance‘ that she could get from DSS to meet the needs of her 2-year-old niece during her interactions with DSS in July 2015. The decision also found that although petitioner was not legally responsible for her niece, she had nonetheless supported her between February, 2015 and January 2017, when a private advocacy agency advised her that an OTG public assistance grant was available for her niece. Ultimately, the commissioner's decision found that while DSS violated regulations requiring its representatives to affirmatively and proactively advise applicants and recipients of benefits and programs for which they may be eligible, regulations did not authorize any retroactive award of benefits such as the OTG grant for which petitioner was eligible as of July 2015 when she met with an agency representative after obtaining custody of her niece. Together with declaratory and injunctive relief, petitioner now seeks judicial review of this administrative determination.

Standard of review

The judicial standard of review of administrative determinations pursuant to CPLR Article 78 is whether the determination is arbitrary and capricious, and a reviewing court is therefore restricted to an assessment of whether the action in question was taken ‘without sound basis in reason and ... without regard to the facts.‘ Matter of Pell v. Board of Education, 34 NY2d 222 (1974). The test usually applied in deciding whether a determination is arbitrary and capricious or an abuse of discretion is whether the determination has a rational or adequate basis. Matter of Peckham v. Calogero, 12 NY3d 424 (2009). The reviewing court in a proceeding pursuant to Article 78 will not substitute its judgment for that of the agency unless it clearly appears to be arbitrary, capricious or contrary to the law. Paramount Communities Inc. v. Gibraltar Cas. Co., 90 NY2d 507 (1997). However, ‘an agency determination arrived at in a manner inconsistent with its own regulations is not supported by a rational basis.‘ Mid Island Therapy Associates, LLC v. New York State Educ. Dept., 129 AD3d 1173 (3d Dep't 2015) (citations omitted).


The state must provide adequately for individuals and families who lack sufficient funds to support themselves and provide such services as far as possible to ensure that families remain together and do not become separated for reasons of poverty alone. NY Constitution, Article 17, §1; Social Services Law §131 (1), (3). OTDA administers two cash assistance programs, Family Assistance and Safety Net Assistance, which were created by the Legislature. Social Services Law §158, 349. OTDA, in turn, delegates to local social services districts such as DSS the obligation to provide assistance and care for any person unable to provide for himself, subject to reimbursement. Social Services Law §62 (1), 131 (1). Local social services districts are further required to ‘make available through the district's website or by other means information for relatives caring for children outside the foster care system‘ including information about ‘child only grants‘ and how to apply for them, as well as information regarding resources for relative caregivers. Social Services Law §392 (2), (3).

Various regulations define the rights and obligations of public assistance applicants and the agencies that administer the programs. Applicants for public assistance are entitled to apply for cash assistance that they believe will meet their needs. 18 NYCRR 350.3 (a)(1). Each inquiry received by DSS shall be answered promptly and where the requested information is not available, the inquiry must be acknowledged and referred to the appropriate source for reply. 18 NYCRR 356.2 (a). Each person who inquires about or applies for public assistance or care must be given information by the social services district about the eligibility requirements, method of computing a public assistance grant or determining eligibility for care, and the right to complain and appeal. 18 NYCRR 355.1 (a). Informational pamphlets shall be utilized whenever appropriate in responding to an inquiry. 18 NYCRR 356.2 (a). To provide information about public assistance and care, each local department shall promptly give a copy of the appropriate informational pamphlet to each person who inquires or applies. 18 NYCRR 355.2 (a). In most instances, a form prescribed by the state must be completed to apply for assistance, though the original application will suffice for a person continuously in receipt of some form of assistance or care from the same district. 18 NYCRR 350.4 (a), (b).

Here, DSS did not adhere to the regulations that governed its interaction with petitioner when she inquired about available public assistance in 2015 after she was awarded custody of her minor niece. The fair hearing record clearly shows that DSS did not reply promptly or accurately to petitioner's inquiry nor did it make available appropriate pamphlets or other information about the OTG grant; instead, according to its hearing witness, DSS did not offer any information about the OTG grant because the DSS representative who met with petitioner was familiar with the SNAP program exclusively. Moreover, according to this witness, agency employees assigned to SNAP cases received no ‘cross training‘ concerning ‘cash assistance‘ programs and ‘they might not know what she qualifies for.‘ (Transcript p. 18). The commissioner's decision credited petitioner's allegations about her multiple inquiries to DSS representatives about other sources of assistance, in addition to SNAP, to assist her in caring for her niece. The commissioner's decision reminded DSS of its obligation to promptly provide information on benefits (including, at a minimum, the appropriate informational booklet) to anyone who inquires about available benefits, but concluded that petitioner's request for retroactive public assistance benefits from July 2015 (when petitioner inquired about public assistance) to January 25, 2017 (when she applied formally in writing and requested a fair hearing) was properly denied because agency regulations did not provide for retroactive benefits under these circumstances.2 Petitioner contends that the OTDA determination should be annulled because it misconstrued the regulatory mandates imposed by the local social services district and because the conduct of DSS deprived petitioner of due process. OTDA and DSS oppose petitioner's application for a judgment under CPLR Article 78, claiming that retroactive relief is unauthorized here.

Statutes and regulations in the area of ‘social legislation. . . must be interpreted and enforced in a reasonable and humane manner in accordance with (their) manifest intent and purpose.‘ Matter of Sabot v. Lavine, 42 NY2d 1068 (1977); Matter of Clark v. Blum, 68 AD2d 1005 (3d Dep't 1979). Petitioner cites to authority which applies the doctrine of equitable estoppel in support of her petition to annul the OTDA determination which affirmed the DSS denial of retroactive benefits under an OTG grant. See, Clark v. Blum, supra; Matter of Weir v. Berger, 57 AD2d 629 (2d Dep't 1977); Matter of McWhorter v. Blum, 100 Misc 2d 433 (Onondaga County Supreme Court 1979). Equitable estoppel is seldom invoked against a municipal agency, except in rare cases in which the governmental subdivision ‘acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his (or her) position to his (or her) detriment or prejudice.‘ Matter of Delaware County Dept. of Social Services v. Pontonero, 31 AD3d 999 (3d Dep't 2006) quoting Bender v. New York City Health & Hosps. Corp., 38 NY2d 662, 668 (1976). Here, the local social services district, DSS, is estopped from asserting petitioner's non-compliance with agency regulations requiring her to complete a written application on the proper state form because DSS wrongfully denied petitioner notice of the benefit to which she was unquestionably entitled by applicable regulations. The agency's conduct was itself in violation of the regulations described above, such that it would be inequitable for petitioner to be denied benefits due to ‘non-filing‘ of an application which the agency was duty-bound to explain to petitioner. Petitioner accepted the agency's negligent or wrongful advice that no other program or benefit was available, and in reliance thereon, she refrained from completing the written application until she finally was alerted to her eligibility for the OTG grant, advice that should have been provided to her in a pamphlet in 2015. The affidavit in opposition submitted by the DSS social welfare examiner who interacted with petitioner is insufficient to establish that DSS comported with applicable regulations in 2015; it directly contradicts the factual findings of the fair hearing that petitioner consistently inquired about sources of assistance in addition to SNAP.3 Notably, this affidavit is based largely upon the affiant's ‘custom and practice‘ due to her entirely reasonable lack of recollection and the affiant did not testify at the fair hearing which resulted in the challenged administrative action. Accordingly, the court finds that the administrative determination denying petitioner's request for retroactive OTG grant benefits was arbitrary, an abuse of discretion and affected by error of law. Assuming arguendo that the respondent agencies were not equitably estopped from denying the request for benefits retroactive to July 2015, the court would nonetheless annul the administrative determination because respondents' analysis of the governing regulations arbitrarily neglected to account for that provision that contemplates correction of underpayments to ‘those who would be current recipients if the error causing the underpayments had not occurred,‘ thereby constituting a determination inconsistent with its own regulations. Here, the fair hearing record establishes that petitioner would have become a ‘current recipient‘ in July 2015 but for the DSS errors in responding to her inquiries and providing pamphlets, and that such errors resulted in underpayments of funds under the OTG program.

Petitioner also seeks (1) a declaratory judgment that DSS practices are in conflict with applicable regulations, (2) a permanent injunction requiring OTDA to properly train DSS caseworkers concerning certain grants and procedures ‘if it has not already done so‘ and (3) a permanent injunction requiring DSS to adhere to applicable regulations. Petitioner also seeks attorneys' fees pursuant to CPLR Article 86 and 42 USC §1983. While petitioner claims that respondents' alleged wrongdoing is actionable under §1983, the only relief demanded in the combined petition-complaint under federal statute is legal fees/costs. OTDA and DSS move for summary judgment dismissing the declaratory judgment action. Petitioner cross-moves for summary judgment and opposes respondents' respective dispositive motions.

‘A trial court may decline to entertain an action for declaratory judgment where other adequate remedies are available, such as a CPLR article 78 proceeding to challenge an administrative determination.‘ Gable Transport, Inc. v. State, 29 AD3d 1125 (3d Dep't 2006) citing Greystone Management Corp. v. Conciliation and Appeals Bd. of City of New York, 62 NY2d 763 (1984); Clarity Connect, Inc. v. AT & T Corp., 15 AD3d 767 (3d Dep't 2005). Prosecution of an Article 78 proceeding may render declaratory judgment and §1983 claims duplicative and unnecessary. Id. A declaratory judgment action ‘requires an actual controversy between genuine disputants with a stake in the outcome.‘ Long Island Lighting Co. v. Allianz Underwriters Ins. Co., 35 AD3d 253 (1st Dep't 2006) quoting David Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3001:3. Where there is no genuine dispute between the parties concerning a legal obligation, or where the alleged controversy involves a right that is clear and conceded, the court need not entertain declaratory relief. See, Winkler v. Spinnoto, 134 AD2d 66 (2d Dep't 1987) aff'd 72 NY2d 402 (1988). Here, the court declines to entertain the declaratory judgment application, and grants respondents' motions for summary judgment, because the court has annulled the administrative determination about which petitioner complained, such that there is no longer an actual controversy in which she retains a stake. Petitioner has not demonstrated any failure by OTDA to adhere to any directory regulation; she challenges its refusal to award retroactive benefits due to DSS errors. Both OTDA and DSS acknowledge the applicability of the pertinent regulations and both agencies are already bound to execute the statutory and regulatory mandates, a duty which obtains without further judicial order. The duties about which petitioner seeks a declaration are clear and conceded by respondents, and the mere fact that DSS did not properly execute them here does not justify a permanent injunction commanding conduct that is separately mandated in statute and regulation. Additionally, while the pleading refers to claims actionable under 42 USC §1983, the pleading does not set forth essential elements of such claims, and it appears that petitioner seeks only legal fees and costs under the federal statute, such that the court finds dismissal of so much of the combined petition-complaint as asserts claims under §1983 is proper, particularly where, as here, complete relief was granted upon a basis that did not implicate due process or other constitutional grounds.

The court declines to award attorneys' fees under CPLR 8601 et seq. because DSS is not a state agency against whom fees may be recovered and the position of OTDA was substantially justified notwithstanding the court's disagreement with its regulatory construction. See, Hernandez v Hammons, 98 NY2d 735 (2002); New York State Clinical Laboratory Ass'n, Inc. v. Kaladjian, 85 NY2d 346 (1995). The parties' remaining contentions have been considered and alternatively rejected and/or rendered moot by the foregoing.

Accordingly, it is hereby ORDERED and ADJUDGED that the petition is GRANTED IN PART to the extent that petitioner is deemed entitled to benefits under the OTG grant program retroactive to July 13, 2015, and further that

The remainder of the petition is DENIED and further that

The complaint setting forth actions for declaratory judgment and other plenary relief under 42 USC §1983 is DISMISSED consistent with the foregoing, all without costs to either party.



Dated: December 15, 2017

Albany, New York



Supreme Court Justice

Papers Considered:

1. Notice of Verified Petition/Summons; Verified Petition and Complaint with Exhibits A-E; Petitioner's Memorandum of Law all filed June 27, 2017;

2. Respondent Roberts' Verified Answer with Administrative Record and Affidavit of David Staszak with Exhibits A-C; Memorandum of Law in Support of Verified Answer and Motion for Summary Judgment; Notice of Motion for Summary Judgment all filed August 7, 2017; Supplement to Verified Answer/Administrative Record filed September 1, 2017;

3. Respondent Beaudoin's Notice of Motion to Dismiss Pursuant to CPLR 3211 (a) (5) and (7); Affidavit in Support of Motion to Dismiss of Nancy Edwards with Exhibits A-G; Memorandum of Law in Support of Motion to Dismiss filed August 8, 2017;

4. Petitioner's Notice of Cross-Motion for Summary Judgment; Affirmation of Susan C. Antos, Esq. with Exhibits 1-2; Memorandum of Law in Opposition to Roberts' Summary Judgment Motion and in Support of Cross-Motion; Memorandum of Law in Opposition to Beaudoin's Motion to Dismiss, all filed October 2, 2017;

5. Respondent Beaudoin's Reply Memorandum of Law; Reply Affirmation of Christina F. Arriaga, Esq. all filed October 23, 2017;

6. Respondent Roberts' Memorandum of Law in Opposition to Cross-Motion and in Reply to Petitioner's Opposition to Motion for Summary Judgment filed October 13, 2107.


1.   The record suggests that petitioner was advised by an outside advocate about eligibility for the OTG grant.

2.   ‘Social services districts must correct any underpayments to current recipients, and to those who would be current recipients if the error causing the underpayment had not occurred, by making appropriate payments in each case within 30 days after discovery of the underpayments (emphasis added).‘ 18 NYCRR 352.31 (f)(1). The plain language of this regulation seemingly contradicts OTDA's assertion, citing this regulation, that ‘[t]he only retroactive payments that are permitted by statute or regulation are for underpayments to current recipients.‘

3.   Petitioner objects to the court even considering this affidavit because it was not part of the ‘fair hearing‘ record. An Article 78 respondent may submit affidavits and other written proof, though statements made therein are not conclusive upon the petitioner. CPLR 7804(e). This affidavit, and other written submissions by DSS, also may be considered to the extent they are relevant to the claims framed as a declaratory judgment action or an action under 42 USC §1983.

L. Michael Mackey, J.

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