Opinion
March 23, 1971
Order and judgment (one paper), Supreme Court, New York County, entered on April 23, 1970, modified, on the law and the facts, to strike from the last decretal paragraph thereof that portion which recites, as the purpose of remand to respondent-appellant Wyman, determination of "whether a burglary took place" and to substitute therefor an adjudication that petitioner-respondent Howard is entitled to a grant of public assistance by reason of catastrophe, and otherwise affirmed, without costs and without disbursements. Order and judgment (one paper), Supreme Court, Bronx County, entered on October 26, 1970, modified, on the law and the facts, to strike therefrom as the purpose of remand to respondent-appellant "action consistent with this judgment" and substitute therefor that such remand is for a fair hearing to determine what petitioner-respondent Velez requires by way of replacement of clothing and furniture by reason of catastrophe, and otherwise affirmed, without costs and without disbursements. The facts are virtually identical in both of these appeals. Each petitioner, a welfare recipient, was the victim of a burglary or larceny, resulting in a loss of clothing and furniture, and each applied, pursuant to the Regulations of the State Department of Social Services (352.4[a] [8] [now 18 NYCRR 352.2(a)(6); 352.7(d)] thereof, based on § 131-a, subd. 6 of the Social Services Law, effective March 30, 1969), for replacement of clothing and furniture lost in a catastrophe. In each case, respondent State Commissioner of Social Services affirmed a determination, made by the same hearing officer in both cases, of the New York City Department that the loss was not due to catastrophe as contemplated by the statutory change brought about by the 1969 amendment, which, except in cases of catastrophe, abolished special grants, substituting therefore cyclical grants. In each case, the decision of affirmance of refusal to grant the replacement allowance recited findings of fact, leading irresistibly to only one conclusion: burglary or larceny of the items sought to be replaced. The crucial problem, then, is the interpretation to be given the word "catastrophe" as used in the statute and the regulation based thereon. Certainly, no great expertise is required to define the word. It is "a momentous tragic usually sudden event marked by effects ranging from extreme misfortune to utter overthrow or ruin" (Webster's Third New International Dictionary Unabridged). Various notes in Corpus Juris Secundum may be summarized as calling it a notable disaster, more than a casualty, and about the same as a misfortune. We hold with Special Term in the Howard case that "A burglary resulting in loss of clothing and furniture is an extreme catastrophe to a person dependent upon public assistance. In a case where the petitioner received public assistance, a burglary involving loss of clothing and an allowance for furniture was described as `a catastrophic burglary' ( Matter of Torres v. Wyman, 60 Misc.2d 771). To hold otherwise would be to close one's eyes to reality. The failure to replace these items is a threat to the health and well being of petitioner and her family." Nor is our recent decision in Matter of Agosto v. Wyman ( 35 A.D.2d 1080) relied on by respondent, applicable, for the lack of furniture there sought to be supplied was not due to either burglary or larceny, but improvidence on the part of petitioner there, whose daughter had taken the furniture away. Therefore, we affirm in both cases, modification being required, however, to arrive at an appropriate result. In the Howard case, the remand, as stated in the judgment, is "to determine whether a burglary took place"; as has been said, respondent having already determined this as a fact, it is superfluous to re-examine that question, and all that need be determined on remand is the appropriate amount of the grant. Also, it is necessary to state the direction, already implicit in the judgment, that the applicant is entitled to a grant. Similarly, amendment of the Velez judgment is required to define the purpose of the remand there, in substitution for the generality which calls merely for action on remand consistent with the direction that petitioner is entitled to a grant.
I conclude the word "catastrophe" is limited in its application to the unforeseeable forces of nature, and does not include a burglary. I find no valid basis for interfering with the construction given the pertinent statute and regulation by the officers and agency charged with its administration. ( Udall v. Tallman, 380 U.S. 1, 16; Matter of Agosto v. Wyman, 35 A.D.2d 1080.) Particularly, in view of the legislative history which led to the enactment of the Simplified Payment System in 1968, and the ultimate establishment of a system of flat grants to eliminate previous inequities in the treatment of recipients of public assistance. (See statement of legislative findings and purpose of L. 1969, ch. 184, § 1, eff. March 30, 1969.) Moreover, the acts of the Commissioner, in his expertise, of providing alternate aids, are not lacking in rationality so as to be arbitrary or capricious. That being manifest, no warrant exists for judicial intervention. ( Matter of Colton v. Berman, 21 N.Y.2d 322, 334.) I would reverse and dismiss the petition. I am constrained to conclude the word "catastrophe" is limited in its application to the unforeseeable forces of nature, and does not include a burglary. It is unfortunate that burglaries are endemic to many sections of the city and occur in great numbers. However, the conclusion of the Commissioner of the Department of Social Services that misfortune of this type, although it can cause great loss to a victim, may not be labeled as a "catastrophe", cannot be said to be arbitrary or capricious. I find no valid basis for interfering with the construction given the pertinent statute and regulation by the officers and agency charged with its administration. ( Udall v. Tallman, 380 U.S. 1, 16; Matter of Agosto v. Wyman, 35 A.D.2d 1080.) Particularly, in view of the legislative history which led to the enactment of the Simplified Payment System in 1968, and the ultimate establishment of a system of flat grants to eliminate previous inequities in the treatment of recipients of public assistance. (See statement of legislative findings and purpose of L. 1969, ch. 184, § 1, eff. March 30, 1969.) No warrant exists for judicial intervention. ( Matter of Colton v. Berman, 21 N.Y.2d 322, 334.) In reaching this conclusion I am mindful of the fact that petitioner has alternative avenues for relief from the burden of her loss, for which application could be made. In simple terms, the Department of Social Services has not unjustifiably taken the position that it need not remedy petitioner's loss by burglary in the manner chosen or sought by petitioner. I would reverse and dismiss the petition.