Constitution Rights Org Edu

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https://jlm.law.columbia.edu/files/2017/05/34.-Ch.-22.pdf


https://jlm.law.columbia.edu/a-jailhouse-lawyers-manual-12th-edition/


CHAPTER 22
HOW TO CHALLENGE ADMINISTRATIVE DECISIONS USING ARTICLE 78 OF THE
NEW YORK CIVIL PRACTICE LAW AND RULES



Jailhouse Lawyer's Manual

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A Jailhouse Lawyer's Manual 12th Edition

LEGAL DISCLAIMER

A Jailhouse Lawyer's Manual is written and updated by members of the Columbia Human Rights Law Review. The law prohibits us from providing any legal advice to currently incarcerated people. The information is not intended as legal advice or representation nor should you consider it as such. Additionally, your use of the JLM should not be construed as creating an attorney-client relationship with the JLM staff or anyone at Columbia Law School. We have attempted to provide information that is up to date and useful. However, because the law changes frequently, we cannot guarantee that this information is current or correct.

If you are printing chapters of the JLM for use by someone other than yourself, please include the title page and legal disclaimer, which can be accessed in PDF form by clicking on the blue, "Title Page & Legal Disclaimer" link below.

To view PDFs of the 12th Edition of the JLM, please click on the chapter titles in the Table of Contents below.

 

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Preface

Foreword by Justice Thurgood Marshall

Acknowledgments

Table of Contents

Section I: Introduction to the JLM and How to Use It

Chapter 1: How to Use the JLM

Section II: Learning Your Rights

Chapter 2: Introduction to Legal Research

Chapter 3: Your Right to Learn the Law and Go to Court

Section III: How to File a Lawsuit and Learn About Your Case

Chapter 4: How to Find a Lawyer

Chapter 5: Choosing a Court and a Lawsuit

Chapter 6: An Introduction to Legal Documents

Chapter 7: Freedom of Information

Chapter 8: Obtaining Information to Prepare Your Case: The Process of Discovery

Section IV: How to Attack Your Conviction or Sentence

Chapter 9: Appealing Your Conviction or Sentence

Chapter 10: Applying for Re-Sentencing for Drug Offenses

Chapter 11: Using Post-Conviction DNA testing to Attack Your Conviction or Sentence

Chapter 12: Appealing Your Conviction Based on Ineffective Assistance of Counsel

Chapter 13: Federal Habeas Corpus

Section V: How to Attack the Conditions of Your Imprisonment

Chapter 14: The Prison Litigation Reform Act

Chapter 15: Inmate Grievance Procedures

Chapter 16: Using 42 U.S.C. § 1983 to Obtain Relief from Violations of Federal Law

Chapter 17: The State's Duty to Protect You and Your Property: Tort Actions

Chapter 18: Your Rights At Prison Disciplinary Proceedings

Chapter 19: Your Right to Communicate with the Outside World

Section VI: How to Attack Your Conviction, Sentence, or Prison Conditions at the State Level

Chapter 20: Using Article 440 if the New York Criminal Procedure Law to Attack Your Unfair Conviction or Illegal Sentence

Chapter 21: State Habeas Corpus: Florida, New York, and Michigan

Chapter 22: How to Challenge Administrative Decisions Using Article 78 of the New York Civil Practice Law and Rules

Section VII: General Health and Safety Rights in Prison

Chapter 23: Your Right to Adequate Medical Care

Chapter 24: Your Right to be Free from Assault by Prison Guards and Other Incarcerated People

Chapter 25: Your Right to be Free from Illegal Body Searches

Chapter 26: Infectious Diseases: AIDS, Hepatitis, Tuberculosis, and MRSA in Prison

Section VIII: Issue-Specific Rights

Chapter 27: Religious Freedom in Prison

Chapter 28: Rights of Incarcerated People with Disabilities

Chapter 29: Special Issues for Incarcerated People with Mental Illness

Chapter 30: Special Information for Lesbian, Gay, Bisexual, Transgender, and/or Queer Incarcerated People

Chapter 31: Security Classification and Gang Validation

Chapter 32: Parole

Chapter 33: Rights of Incarcerated Parents

Chapter 34: The Rights of Pretrial Detainees

Chapter 35: Getting Out Early: Conditional and Early Release

Chapter 36: Special Considerations for Sex Offenders

Chapter 37: Rights Upon Release

Chapter 38: Rights of Youth in Prison

Chapter 39: Temporary Release Programs

Chapter 40: Plea Bargaining

Chapter 41: Special Issues of Incarcerated Women

Section IX: Appendices

Appendix I: Addresses of Federal Courts & New York State Prisons and Their Respective Federal Judicial Districts

Appendix II: New York State: Filing Instructions & Addresses of New York State Courts

Appendix III: Addresses of New York District Attorneys

Appendix IV: Directory of Legal and Social Services for Incarcerated People

Appendix V: Definitions of Words Used in the JLM

Appendix VI: Definitions of Latin Words Used in the JLM
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annulling the ________________ (Describe administrative determination sought to be reviewed.

676 A JAILHOUSE LAWYER'S MANUAL Ch. 22

4. Challenge Legal Authority for State Action (Prohibition)

The fourth type of Article 78 proceeding arises when you challenge the state as having gone beyond its
lawful authority.

In this type of proceeding, you ask the court to stop an official from acting beyond his
authority or jurisdiction.

This type of case is difficult to prove and rarely successful in court.

Nevertheless, if you feel that an official is going to act in a way that will injure you, and the official is not allowed by law to act in such a way, this type of Article 78 proceeding can be a way to prevent the action.57

C. When You Can Obtain Relief Under Article 78

There are three important limitations on the use of Article 78 that you keep in mind, or your case may be
dismissed. They are described below.

1. You May Only Challenge Administrative Decisions

Article 78 may only be used to challenge administrative determinations of a New York state officer or
agency.

It generally cannot be used to challenge the decisions of a judge or a court, such as criminal convictions or criminal sentences. However, Article 78 can be used to challenge other types of actions by judges.

Article 78 may be used to challenge a punishment a court gives for contempt of court.58

It can also be used where the judge made a decision that exceeded his authority (this is called "prohibition"—see Part B(4)), or to challenge a judge's failure to act (called "mandamus"—see Part B(1)).

2. You Must Exhaust All Administrative Remedies

The administrative determination you challenge must be final.59

This means that a decision-maker must have caused you an actual injury of some sort.

There have been many cases dealing with the question of what kinds of decisions are considered final.

If possible, you should read the Practice Commentary and Notes of
Decisions of Section 217 of N.Y. C.P.L.R. to see how courts have decided the issue.

In addition to the decision being final, there must be no way for you to appeal the decision any further within the administrative agency. 60

If it is possible for you to appeal the decision to a higher state officer, you must do so before seeking Article 78 relief.

In other words, you must go through every normally available step in the administrative process before seeking Article 78 relief.

This is called "exhaustion of remedies."

If you have failed to follow the normal administrative procedure to the fullest extent possible, the court may refuse to hear your Article 78 petition.61

This means that it is important to be aware of the ways in which you can challenge or appeal the decisions of prison officials within the prison or corrections system.62

There are specific time limits for bringing appeals at each level of the administrative appeals process. You should be aware that many administrative appeals require you to act quickly.

For example, you must bring a 57. See Schumer v. Holtzman, 60 N.Y.2d 46, 51, 454 N.E.2d 522, 524, 467 N.Y.S.2d 182, 184 (1983) (holding that a request for prohibition under Article 78 is only appropriate if you are asking the court to prevent an official from acting beyond his or her authority).
58
. See Williams v. Cornelius, 76 N.Y.2d 542, 546, 563 N.E.2d 15, 17, 561 N.Y.S.2d 701, 703 (1990) (holding that Article 78 petitions may be used to challenge a summary contempt order, where a summary contempt order is one in which there is "no right to an evidentiary hearing, the right to counsel, or the opportunity for adjournment to prepare a defense."

This challenge to a summary contempt order may only be issued when the actions giving rise to the contempt order take
place in the "immediate view and presence" of the judge and the action disrupts the court proceeding.

See also Loeber v. Teresi, 256 A.D.2d 747, 748–49, 681 N.Y.S.2d 416, 418 (3d Dept. 1998)
(holding that an Article 78 petition can be used to challenge a judge's summary contempt order).
59. N.Y. C.P.L.R. 7801(1) (McKinney 1994).

60
. See Essex County v. Zagata, 91 N.Y.2d 447, 453, 695 N.E.2d 232, 235, 672 N.Y.S.2d 281, 284 (1998) (holding
under New York Civil Practice Law and Rules 7801 that an agency determination is final when:
(1) the agency's position is definitive;
(2) the position inflicts actual injury; and
(3) no further agency action can remove or lessen the injury).

61

. See Alamin v. N.Y. State Dept. of Corr. Services, 241 A.D.2d 586, 587, 660 N.Y.S.2d 746, 747 (3d Dept. 1997)
(requiring petitioner to exhaust administrative remedies before initiating an Article 78 petition);
McCloud v. Coughlin, 102 A.D.2d 854, 854, 476 N.Y.S.2d 630, 631 (2d Dept. 1984) (dismissing Article 78 petition because petitioner had not appealed superintendent's disciplinary ruling to the Commissioner of the Department of Correctional Services).

62
. See Farinaro v. Leonardo, 143 A.D.2d 492, 492–93, 532 N.Y.S.2d 601, 602 (3d Dept. 1988) (holding that a
prisoner who was informed of the proper administrative procedure to challenge decision of prison officials to withhold martial arts catalog from him and did not follow such procedure had failed to exhaust administrative remedies, and could not obtain judicial relief).

Ch. 22 HOW TO CHALLENGE ADMINISTRATIVE DECISIONS USING ARTICLE 78 677
grievance within 21 days of the event that gives rise to the grievance.63

For more information on Inmate Grievance Procedures, see JLM, Chapter 15.

If you are appealing the outcome of a disciplinary hearing, you
must submit an appeal in writing to the superintendent within 72 hours of the decision.64 The superintendent must then issue a decision within 15 days of receiving the appeal.

If you are appealing a Superintendent's Hearing decision, you must appeal to the Commissioner within thirty days of the decision.65

The Commissioner must issue a decision on your appeal within 60 days.

If you fail to meet a deadline for an appeal, you may be prevented from bringing an Article 78 petition on the same claim.

If you do not receive a response by the time limit, you can proceed to the next level of appeal.66

There are a few exceptions to the general rule requiring exhaustion of administrative remedies, but keep
in mind that these exceptions are rarely applied by the court and normally should not be relied upon.

The first exception is in cases where an appeal would have no chance of success.

In Martin v. Ambach, 67 the court observed that the finality requirement of N.Y. C.P.L.R. 7801(1) may be relaxed if the pursuit of an administrative remedy "reasonably appears to be futile." 68

Note that courts rarely find that an appeal "reasonably appears to be futile." 69


A second exception to the exhaustion requirement may arise when a non-final order will result in
"irreparable harm" without court intervention.70

A "Non-final order" is an order from the court that does not end or dispose of a case or legal issue, and is generally not appealable.

"Irreparable harm" is harm that cannot be changed or reversed after it has been done.

Thus, if harm will take place before you can appeal a decision, you can file a motion under Article 78 to ask the court to intervene to prevent the harm.


Types of interventions could include a transfer out of your facility or a decision of a disciplinary hearing board, which might take effect before you have a chance to appeal.

Additionally, in a case that was not brought by a prisoner, a court has ruled that exhaustion is not required if someone is seeking medical benefits to which he is entitled under state and federal law because it "creates an unnecessary hardship" on "poor, needy individuals."71

The third exception is in cases challenging an agency's action as beyond its powers.

In Dineen v.Borghard,72 the court held that the exhaustion rule "need not be followed when an agency's action is alleged to be unconstitutional or wholly beyond its powers." 73

This means that if your Article 78 petition claims that a prison official acted unconstitutionally in depriving you of some protected right, it is possible that a court may find that you do not need to have first exhausted all of your administrative appeals.

This exception is a limited one and, as one court has pointed out, "[t]he mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the requested relief." 74

63. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5.
64. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.8 (2015).
65. N.Y. Comp. Codes R & Regs. tit. 7, § 254.8.
66
. See,
e.g., N.Y. Comp. Codes R. & Regs. tit. 9, § 8006.4(c) (if you appeal a parole decision and the appeal unit does
not issue its findings within four months of receiving your appeal, you are considered to have exhausted your
administrative remedies and may bring your appeal to the courts).
67. Martin v. Ambach, 85 A.D.2d 869, 446 N.Y.S.2d 468 (3d Dept. 1981),
aff'd, 57 N.Y.2d 1001, 443, N.E.2d 953, 457
N.Y.S.2d 478 (1982).
68. Martin v. Ambach, 85 A.D.2d 869, 870, 446 N.Y.S.2d 468, 470 (3d Dept. 1981) (noting that the lower court had
relied upon such reasoning).
69
. See Martin v. Ambach, 85 A.D.2d 869, 871, 446 N.Y.S.2d 468, 470 (3d Dept. 1981) (stating that this should be
the exception rather than the rule, occurring only when necessary to avoid irreparable harm).
See also Practice
Commentary to N.Y. C.P.L.R. 7801(7) (McKinney 1994) (stating that the three exceptions lie in the court's discretion and
"are rarely invoked in the context of Article 78 review").
70. Martin v. Ambach, 85 A.D.2d 869, 871, 446 N.Y.S.2d 468, 470 (3d Dept. 1981).
71
. See Lutsky v. Shuart, 74 Misc.2d 436, 438, 342 N.Y.S.2d 709, 712, n2 (Sup. Ct. Nassau County 1973),
aff'd, 43
A.D.2d 1016, 351 N.Y.S.2d 946 (2d Dept. 1974) (holding that welfare recipient seeking medical benefits does not have to
exhaust administrative remedies before bringing an Article 78 petition);
see also Valdes v. Kirby, 92 Misc.2d 367, 371, 399
N.Y.S.2d 972, 974–75 (Sup. Ct. Suffolk County 1977) (holding exhaustion not required for petitioner seeking housing
shelter allowance and facing possible eviction).
72. Dineen v. Borghard, 100 A.D.2d 547, 473 N.Y.S.2d 247 (2d Dept. 1984) (plaintiff was a public employee claiming
that his work was unlawfully reassigned to others in order to pressure him to quit his job and because the agency's actions
were beyond its powers, the administrative exhaustion rule did not apply).
73. Dineen v. Borghard, 100 A.D.2d 547, 548, 473 N.Y.S.2d 247, 249 (2d Dept. 1984) (holding plaintiff was not
required to pursue an administrative remedy since he was alleging violations of his statutory and constitutional rights).
74. Levine v. Bd. of Educ. of N.Y., 186 A.D.2d 743, 744, 589 N.Y.S.2d 181, 183 (2d Dept. 1992)

For example, in
Levine v. Board of Education, a court rejected a teacher's claim that the exhaustion
requirement did not apply due to constitutional violations. The court held that mere assertion of a
constitutional violation will not excuse one from pursuing relief through the established administrative
agency. The court also stated that the asserted constitutional violation exception did not apply when the claims
were based on factual issues that the court could not review without the necessary factual record established
by the administrative agency.75
Therefore, it is possible that a court will allow your Article 78 motion to proceed without exhaustion of all
the administrative remedies when you can demonstrate: (1) futility of the administrative remedy, (2)
irreparable harm in absence of prompt judicial intervention, or (3) unconstitutional action. Remember that
these exceptions rarely work, and it is safest to pursue all possible appeals within the agency or prison system
before filing an Article 78 proceeding in court.

https://casetext.com/case/matter-of-valdes-v-kirby

Matter of Valdes v. Kirby, 92 Misc. 2d 367, 399 N.Y.S.2d 972 (N.Y. Sup. Ct. 1977)

Matter of Valdes v. Kirby
Opinion

September 19, 1977

Leonard S. Clark for petitioner.

Howard E. Pachman, County Attorney (Jerome A. Campo of counsel), for respondent.

LEON D. LAZER, J.

Petitioner in this article 78 proceeding, which has been referred to this court by Mr. Justice LIPETZ, is a recipient of public assistance in the home relief category.

She seeks a judgment declaring that the denial of her request for a shelter allowance in the sum of $190 per month by the respondent Commissioner of Social Services of Suffolk County (the "commissioner") was unlawful and directing that he grant her request.


The respondent has interposed three objections in point of law in his answer:

(1) that petitioner has not exhausted her administrative remedies;

(2) that no emergency situation exists which would excuse her from doing so; and

(3) that if such a situation does exist emergency assistance may be available.

Petitioner asserts that she will suffer irreparable injury if she is compelled to seek a fair hearing or even emergency assistance since her rent is due and she may be evicted.


Petitioner formerly resided with her mother and received $94 per month for her regular monthly needs and $29.20 for the payment of a portion of the taxes, insurance and utilities on her mother's home.

When her mother closed her home petitioner moved alone to a two-room furnished apartment where the rental is $190 per month and includes utilities.

The commissioner's stated reasons for denying her request were that the shelter cost was (1) "over standard for your size family"; and (2) exceeded the "limits imposed by N.Y. State maximum monthly increase."

A handwritten note on the bottom of the form which denied her request states that she would be permitted a grant of $150.

The maximum monthly rental allowance for accomodations with heat as established in the regulations of the State Department of Social Services for one person in Suffolk County is $205 ( 18 NYCRR 352.3 [a]) and thus the commissioner was in error when he determined that the shelter allowance requested by petitioner was "over standard for your size family."

The regulations ( 18 NYCRR 352.3 [a] [1]) provide that "Each social services district shall provide * * * a monthly allowance for rent in the amount actually paid, but not in excess of the appropriate maximum" (emphasis supplied).

The second reason stated by the commissioner for his denial of petitioner's request is equally without merit.

The "maximum monthly increase" referred to is that provided for in subdivision 3-a of section 131-a Soc. Serv. of the Social Services Law (L 1977, ch 77) which provides as follows: "No individual or household shall be granted any increase in monthly shelter allowance during the period commencing April first, nineteen hundred seventy-seven and ending March thirty-first, nineteen hundred seventy-eight, which in the aggregate exceeds the following for each size household:

1 2 3 4 5 6 For each additional person $7 $8 $9 $10 $11 $12 $1 provided, however, no grant, including such increases, shall exceed the maximum shelter allowances established by department regulation pursuant to subdivision two of this section. Any person or household first receiving a shelter allowance for any period after June thirtieth, nineteen hundred seventy-seven, shall be granted a shelter allowance in the amount of rent actually paid up to the maximum shelter allowance, provided that such allowance may be increased by an amount which, together with any rent increases charged to such person or household in the three month period immediately prior to the period for which the first shelter allowance is received, does not exceed the above schedule. Any person who does not receive a shelter allowance for a period of ninety days or less shall, for purposes of this subdivision, be deemed to have been in continuous receipt of a shelter allowance."

The issue here is whether the permitted $7 maximum increase in the shelter allowance for one person is applicable to a situation where the prior shelter allowance consisted of the prorated allowance granted to public assistance recipients sharing a home with "a non-legally-responsible person" ( 18 NYCRR 352.3 [c]) and the request is for rent for separate accommodations.

The cited regulation does not provide for the payment of rent but for the sharing of carrying charges in lieu of rent (Matter of MacGaffick v Lavine, 45 A.D.2d 928).

The new statute (Social Services Law, § 131-a, subd 3-a) provides that "[a]ny person or household first receiving a shelter allowance for any period after June thirtieth, nineteen hundred seventy-seven, shall be granted a shelter allowance in the amount of rent actually paid up to the maximum shelter allowance" (emphasis supplied).

Although petitioner as a "person" received a shelter allowance, the "household" that petitioner has been forced to establish by virtue of the closing of her mother's home is one that did not exist before (cf. Matter of Robinson v Lavine, 81 Misc.2d 1047, affd 50 A.D.2d 858).

Since one person can constitute a "household" under the statute, the use of the disjunctive in the statute would create a mere redundancy unless the legislative intent was to apply the exception to the maximum increase provision to either a person who first receives a shelter allowance after June 30 or to a newly created household.

Moreover, petitioner is now requesting rent for the first time rather than merely an increase in payments for sharing the carrying charges on shared accommodations. The maximum increase provisions in subdivision 3-a of section 131-a must be deemed inapplicable to such a situation. The respondent commissioner himself conceded that subdivision 3-a of section 131-a is inapplicable when he noted on the application form that petitioner could receive a shelter allowance in the sum of $150 (rather than $36.20, the $29.20 shelter allowance petitioner formerly received plus the $7 increase permitted under the new statute). Where a shelter allowance is first granted to a person or household, the statute mandates that it be in the amount of the rent actually paid up to the maximum permitted under the schedule.

The proceedings are not premature on the ground that petitioner has failed to exhaust her administrative remedies.

In view of the fact that her rent was due on the first of the month and that she faces possible eviction, her success in an administrative proceeding might be meaningless (Matter of Wildstein v Barbaro, 61 Misc.2d 31;
see Matter of Veit v Barbaro, 59 Misc.2d 117).

It is an unnecessary hardship to force the poor and needy to institute administrative proceedings to obtain what they are entitled to under the statute (see Lutsky v Shuart, 74 Misc.2d 436, affd 43 A.D.2d 1016).
https://www.constitutionrights.org/index.php/topic,789.msg7746.html#msg7746

Petitioner is entitled to a declaration that the denial of her request for a shelter allowance was unlawful and to an order directing the respondent to grant her request for a shelter allowance in the sum of $190 per month.

Synopsis

Public assistance recipient sought judgment declaring that denial of her request for shelter allowance was unlawful, and directing that her request be granted. The Supreme Court, Suffolk County, Special Term, Leon D. Lazer, J., held that:

(1) determination by county commissioner of social services, that shelter allowance of $190 per month for individual living alone in accommodations for which rent included heat was in excess of standard allowed, was error;

(2) allowance of $190 per month for rent, including heat, of apartment for individual who previously had resided with her mother and received $94 per month for her regular monthly needs and $29.20 for payment of portion of taxes, insurance and utilities on her mother's home, who had never requested shelter allowance before, and who was forced to establish "household" which did not exist before due to closing of mother's home, did not violate "maximum monthly increase" provision of Social Services Law, and

(3) proceedings by recipient were not premature on ground that recipient had failed to exhaust her administrative remedies, in view of facts that her rent was due on first of the month and that she faced possible evicton, and thus that her success in administrative proceeding might be meaningless.

Judgment entered.

...

https://casetext.com/case/matter-of-wildstein-v-barbaro

Matter of Wildstein v. Barbaro
Summary

In Wildstein v. Barbaro, 61 Misc.2d 31, 304 N.Y.S.2d 531 (Sup.Ct. Nassau Co. 1969), the Nassau County Department of Social Services approved a shelter allowance in excess of the statutory maximum to enable a widow to lease an apartment with special facilities to care for one of her children who suffered from cerebral palsy.

Summary of this case from Viverito v. Smith
See 1 Summary
Opinion

September 29, 1969

Allen Redlich for petitioner.

    Morris H. Schneider, County Attorney, for respondent.

DANIEL G. ALBERT, J.

In this proceeding pursuant to article 78 of the CPLR, petitioner seeks a judgment declaring that respondent "is estopped to deny that petitioner's housing needs are $187 a month for so long as petitioner remains contractually liable to pay such rental by the terms of a lease authorized and approved" by a representative of the respondent.

The undisputed facts depict what is believed to be an unusual situation.

The petitioner is a recipient of public assistance.

She is a widow with two children, one of whom is a 13-year-old girl suffering from cerebral palsy, who can only be transported by use of a wheel chair.

In December, 1968, when the maximum shelter allowance for a family of three under the schedule of the Department of Social Services was $140 a month, the Department of Social Services approved a grant of $187 a month to petitioner for shelter needs, so that petitioner could rent the apartment she currently resides in. The apartment is accessible from a ramp-type entrance which makes it possible for petitioner to wheel her daughter in and out of her home.

At the time she rented the apartment, petitioner admittedly advised her caseworker that the landlord required her to sign a one-year lease fixing the rent at $187 a month.

Petitioner was advised to sign the lease, which she did, and the Department of Social Services paid petitioner the first month's rent and the amount of the security deposit required under the lease.

The department continued to pay the rental through June, 1969. In July, 1969, the maximum allowable shelter allowance for a family of three was raised to $145 a month. However, in June of this year, petitioner was advised by the Department of Social Services that effective July 1, 1969, it would no longer pay any rental in excess of the scheduled maximum rent and, therefore, the amount of petitioner's monthly grant would be reduced by $42. Petitioner's grants for July, August and September of this year have been reduced in that amount.

While conceding substantially all of the material facts as alleged in the petition, the respondent contends that, as the result of amendments to subdivision 1 of section 131-a Soc. Serv. of the Social Services Law and the regulations of the State Department of Social Services promulgated pursuant thereto, he no longer has any discretion to approve or budget shelter allowances in excess of the rent allowance schedule.

The regulations formerly provided that "Rent shall be allowed `as paid' up to the maximum of [the] schedule [filed by the local public welfare agency with the State Department]" (18 N.Y.CRR, former section 352.4 [e] [1]) (emphasis added).

The present regulations state (18 18 NYCRR 352.4 [a] [6] [ i ]) that "An allowance for rent shall be made in the amount actually paid by the recipient but not in excess of the appropriate maximum of [the] schedule" (emphasis added).

It is somewhat difficult to see how the change in the portion of the regulations italicized by the court has the effect that respondent attributes to it. Nevertheless, without determining whether respondent does, in fact, retain discretion to provide allowances for rentals in excess of the scheduled amounts where there are special circumstances, it seems to the court that since respondent exercised such discretion at the time petitioner executed the lease involved herein and authorized her to do so on the basis that the Department of Social Services would grant her a sufficient shelter allowance to meet her obligations under the lease, the respondent is not required by the new regulations referred to supra to effect an immediate reduction in petitioner's grant and may not reduce the amount of that grant while petitioner remains obligated under the lease.

Nor does it appear to the court that this proceeding is premature on the ground that petitioner has failed to exhaust her administrative remedies.

In view of the special circumstances herein, were petitioner to seek administrative relief successfully, her "victory" might be meaningless since an administrative hearing and determination could never be accomplished quickly enough to prevent eviction proceedings which are currently pending.

Accordingly, judgment will be granted directing the respondent to pay petitioner the additional $42 a month for shelter needs effective July 1, 1969 until the termination of the lease signed by petitioner.

1. Starting the Proceeding


You begin an Article 78 proceeding by filing either a Notice of Petition or an Order to Show Cause
(described below).

Whichever you choose, you will also need to file supporting affidavit(s), a Verified Petition,the filing fee, the Request for Judicial Intervention, and the Request for an Index Number.84 The following
sections will explain how to do each of these things.
"Filing" in an Article 78 proceeding means delivery of the Verified Petition to the court clerk with the
required fee.85

You should file your Article 78 petition in the supreme court for the county in which the administrative
decision you are challenging was made, the county where the administrative appeal was decided, or the countyin which the respondent has his main office (usually Albany County).86


In the Order to Show Cause, you should ask the court to allow you to serve the respondents and the
Attorney General by mail. Be sure to specifically include a request to the judge to allow service by mail.

In the affidavit attached to your Order to Show Cause, you should explain why you need an Order to Show Cause

n your Order to Show Cause, you must indicate the date by which you will mail or deliver (serve) copies
of the papers to the respondent and to the appropriate Attorney General's office

Your Notice of Petition can be dismissed if you do not provide a return date.89

Remember, an Order to Show Cause can speed up the hearing date so that your case can be heard in less than 20 days.