Opinion
March 26, 1992
Appeal from the Supreme Court, New York County (Eugene Nardelli, J.).
After a hearing, respondents determined to withhold Home Relief benefits from petitioner for three months as a sanction for her willful failure to keep an appointment with respondents' employment office. The IAS court annulled this determination, and ordered a new hearing because, inter alia, the Hearing Officer refused to grant petitioner an adjournment to submit documentation in support of her assertion that she was sick on the day of the appointment, which papers she had been advised to present in the hearing notice.
Petitioner contends that the Hearing Officer's conduct deprived her of due process in violation of US Constitution Fourteenth Amendment, and that she therefore has a cause of action under 42 U.S.C. § 1983 and a consequent right to attorneys' fees under 42 U.S.C. § 1988. We disagree. The deprivation of rights upon which liability under section 1983 is predicated must derive from a policy or custom of the person acting under color of any statute, ordinance, regulation, custom or usage of the State (Simpson v New York City Tr. Auth., 112 A.D.2d 89, 91, affd 66 N.Y.2d 1010). Proof of a single incident of objectionable conduct by a municipality is insufficient to establish the existence of policy or custom for section 1983 purposes (supra). Although in certain circumstances it is a due process violation not to adjourn a hearing when necessary in order for a party to present relevant evidence (Matter of Brown v Popolizio, 166 A.D.2d 44), in order to amount to a 42 U.S.C. § 1983 claim, the violation must be shown to result from an official State policy or custom (Batista v Rodriguez, 702 F.2d 393, 397). The injured party must also show that there is no adequate State law remedy (Hudson v Palmer, 468 U.S. 517). Neither prerequisite has been met here.
Concur — Sullivan, J.P., Milonas, Rosenberger, Ross and Kassal, JJ.