Opinion
July 12, 1996
Appeal from the Supreme Court, Nassau County, O'Brien, J.
Present — Pine, J.P., Fallon, Callahan, Balio and Davis, JJ.
Judgment unanimously vacated, determination annulled on the law without costs and petition granted in part in accordance with the following Memorandum: Because this CPLR article 78 proceeding raises a substantial evidence question, it should have been transferred to the Appellate Division pursuant to CPLR 7804 (g) ( see, Matter of Price v. Coughlin, 195 A.D.2d 995; Matter of Benesch v. Village of Clayton, 185 A.D.2d 688, lv denied 81 N.Y.2d 702, rearg denied 81 N.Y.2d 912, rearg dismissed 83 N.Y.2d 824; Sawma v. Perales, 129 A.D.2d 976, lv denied 70 N.Y.2d 610, rearg denied 70 N.Y.2d 951). We consider the matter de novo, however, as if it had been properly transferred.
Petitioner commenced this CPLR article 78 proceeding challenging the determination of the Commissioner of the New York State Department of Social Services (Commissioner), made after a fair hearing, to discontinue the public assistance benefits received by petitioner based upon her failure to cooperate with the investigation conducted by the Nassau County Department of Social Services (local agency) to verify her residence. At the fair hearing, a special investigator employed by the local agency testified that, on December 14, 1994, she made an unannounced home visit to petitioner's stated address to verify that petitioner resided in Nassau County. She knocked on the door at that address but no one responded. The investigator left a notice at the door advising petitioner to contact her the following day. Petitioner did not respond. On December 17, 1993, the investigator sent petitioner a letter by ordinary mail advising petitioner to contact her to schedule a home visit in order to avoid the possible discontinuance of benefits. Petitioner did not respond. By letter dated December 30, 1993, the local agency sent petitioner a notice of intent to discontinue her benefits, effective January 10, 1994, based upon the lack of a verifiable Nassau County address and petitioner's lack of cooperation with the investigation.
Petitioner testified at the fair hearing that she did not recall receiving either the notice or the letter from the special investigator. Furthermore, she testified that, had she received either communication, she would have responded. Additionally, it is undisputed that petitioner established that she resides in Nassau County. We conclude that the evidence concerning petitioner's receipt of either the notice or the letter is equivocal and thus, under the circumstances, the determination to discontinue petitioner's public assistance benefits based upon petitioner's failure to cooperate in the investigation conducted by the local agency is arbitrary and capricious and not supported by substantial evidence ( see, Matter of Taylor v. Bane, 199 A.D.2d 1071; cf., Matter of Gilbert v. Blum, 90 A.D.2d 288, appeal dismissed 59 N.Y.2d 760).
Lastly, we note that the petition seeks an award of counsel fees pursuant to CPLR article 86. Application for that relief must be made to the court of original instance ( see, Matter of Scibilia v. Regan, 199 A.D.2d 736).
Therefore, we vacate the judgment of Supreme Court, annul the Commissioner's determination and grant the petition in part by directing the local agency to restore petitioner's public assistance benefits that were lost pursuant to the Commissioner's determination.