Opinion
8187N Index 101558/16
01-22-2019
Gilbert LAU, Plaintiff–Appellant, v. HUMAN RESOURCES ADMINISTRATION, Care of Waverly Center, et al., Defendants–Respondents.
Gilbert Lau, appellant pro se. Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Gilbert Lau, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Sweeny, J.P., Richter, Tom, Kern, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September 1, 2017, which denied plaintiff's motion for leave to submit a third amended complaint, unanimously affirmed, without costs.
The court properly denied plaintiff's motion to submit a third amended complaint, which, like his second amended complaint, sought consequential damages based on the temporary suspension of his Supplemental Nutrition Assistance Program (SNAP) benefits. Plaintiff also asserted a violation of his due process rights based on the alleged failure of defendant Human Resources Administration to mail a March 7, 2016 notice to plaintiff indicating that his benefits would be suspended if he did not submit a recertification application by March 31, 2016. Because SNAP benefits are a governmental function for the benefit of the general public, with no statute conferring a private right of action upon individuals receiving the government assistance, plaintiff may not seek consequential damages related to the temporary suspension of those benefits. Nor has plaintiff set forth any special relationship, excepting him from the general rule of municipal immunity from tort liability (see Rodriguez v. City of New York, 20 A.D.3d 327, 799 N.Y.S.2d 195 [1st Dept. 2005], appeal withdrawn 7 N.Y.3d 751, 819 N.Y.S.2d 876, 853 N.E.2d 247 [2006] ; Biro v. Department of Social Servs./Human Resources Admin., 1 A.D.3d 302, 767 N.Y.S.2d 229 [2d Dept. 2003] ).
Plaintiff's due process claim also fails, since he sought and was granted a post-deprivation fair hearing, at which the Administrative Law Judge found in his favor, and his benefits were restored, including retroactive payment of the benefits lost during the temporary suspension (see Matter of Kaur v. New York State Urban Dev. Corp., 15 N.Y.3d 235, 260, 907 N.Y.S.2d 122, 933 N.E.2d 721 [2010], cert denied 562 U.S. 1108, 131 S.Ct. 822, 178 L.Ed.2d 556 [2010] ; Hook v. Mutha, 168 F.Supp.2d 77, 79 [S.D.N.Y.2001] ). Accordingly, as plaintiff's claims are not viable, the court properly denied leave to amend the complaint (see Eighth Ave. Garage Corp. v. H.K.L. Realty Corp., 60 A.D.3d 404, 405, 875 N.Y.S.2d 8 [1st Dept. 2009], lv dismissed 12 N.Y.3d 880, 883 N.Y.S.2d 174, 910 N.E.2d 1003 [2009] ).