Summary
observing that 86 ADM-7 imposes a 48-hour/72-hour time frame for determining eligibility and awarding emergency benefits
Summary of this case from Henrietta D. v. GiulianiOpinion
May 13, 1997
Appeal from Supreme Court, New York County (Charles Ramos, J.).
Plaintiffs alleged that defendant fails to act on their applications for emergency moving benefits (Social Services Law § 303[e], [i], [j]; 18 NYCRR 397.1[b][5], [9], [10]; 397.5[e]), and seek to preliminarily enjoin defendant to make eligibility determinations within 48 hours of the submission of a complete application and to issue emergency moving benefits to qualified applicants by the following day, invoking State Department of Social Services Administrative Directives 86 ADM-7, 92 ADM-26 and various other State DSS documents. While neither side provided the motion court or this Court with a copy of Administrative Directive 89 ADM-6, that directive is referred to in the fair hearing determinations annexed to plaintiffs' motion papers, concerns applications for identical emergency moving benefits, and specifically states: "A decision on a request for an additional allowance must be made within 30 days of the local district's receipt of a completed request form * * * unless there is an immediate need. In the case of an immediate need, local districts must follow the procedures outlines in 86 ADM-7." This mandatory directive, binding on all local districts ( see, Matter of Davis v. Perales, 151 A.D.2d 749, 750-751, lv denied 75 N.Y.2d 706), establishes plaintiffs' right to preliminary injunctive relief. A prompt 30-day determination in accordance with 89 ADM-6 will prevent the potential loss of apartments, the health hardships and the inappropriate two-step fair hearing procedure that plaintiffs are presently forced to follow in order to obtain an initial eligibility determination and a review of any adverse determination by defendant. Further, in limiting relief under 86 ADM-7 to only those plaintiffs who lack shelter, the motion court overlooked other potentially applicable "immediate need" aspects of 86 ADM-7, such as receipt of a notice of eviction or dispossession, and we eliminate that limitation. Moreover, 86 ADM-7 imposes a 48-to-72-hour time frame for determining eligibility and awarding emergency moving benefits in cases of immediate need, which defendant admits would apply given immediate need. Accordingly, we modify to direct compliance with both 89 ADM-6 and 86 ADM-7. Class certification was properly denied because the claims, as presented, lack factual commonality ( see, Auguste v. Wing, 1996 U.S. Dist LEXIS 20118 [ED NY, Nov. 18, 1996, Sifton, Ch. J.]; Conrad v. Hackett, 184 A.D.2d 995; Matter of Davis v. Perales, supra, at 752). In addition, since 86 ADM-7 and 89 ADM-6 already impose time limits on defendant's eligibility determinations and, in cases of immediate need, on the payment of emergency moving benefits, plaintiffs are adequately protected by the doctrine of stare decisis ( see, Matter of Jones v. Berman, 37 N.Y.2d 42, 57).
Concur — Murphy, P.J., Rosenberger, Wallach, Tom and Andrias, JJ.