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Matter of Nasser v. Lavine

Supreme Court, Westchester County
Sep 7, 1973
76 Misc. 2d 46 (N.Y. Sup. Ct. 1973)

Opinion

September 7, 1973

Gene F. Reibman for petitioners.

Louis J. Lefkowitz, Attorney-General, for Abe Lavine, respondent.

Harry Lott, County Attorney ( F. Sherwood Alexander, Sr., of counsel), for Leonard Berman, respondent.


In this severed article 78 proceeding (see prior decision dated July 24, 1973) petitioners raise the issue that the recoupment provisions of the New York State Official Compilation of Codes, Rules and Regulations ( 18 NYCRR 352.7 [g] [5]) are unconstitutional because it violates Federal regulations (Code of Fed. Reg., tit. 45, § 233.20, subd. [a], par. [3], cl. [ii], subcl. [ d]). The parties cite cases from other jurisdictions which have considered the question with diverse results. It would not be useful to discuss these cases since the Federal regulation in point has been amended to become effective October 15, 1973 ( 38 Federal Register 22010). The amended regulation provides for recoupment of overpayments from current assistance (Code of Fed. Reg., tit. 45, § 233.20, subd. [a], par. [12], cl. [i], subd. [C]) as occurred here and it is clear that Federal policy permitted such action prior to the amendment ( 38 Federal Register 22007). However, the amendment provides that where recoupments are made from current assistance payments the State must establish reasonable limits on the proportion of such recoupment to avoid undue hardship (Code of Fed. Reg., tit. 45, § 233.20, subd. [a], par. [12], cl. [i], subcl. [D]). Neither respondents nor the Hearing Officer took into account any change in the child's needs during the recoupment period ( 74 Misc.2d 590, 598). Accordingly, the petition is granted to the extent that the determination of respondents is annulled and the matter remitted for a hearing to determine whether the amount recouped was proper in light of the child's needs.


Summaries of

Matter of Nasser v. Lavine

Supreme Court, Westchester County
Sep 7, 1973
76 Misc. 2d 46 (N.Y. Sup. Ct. 1973)
Case details for

Matter of Nasser v. Lavine

Case Details

Full title:In the Matter of BRENDA NASSER et al., Individually and on Behalf of Their…

Court:Supreme Court, Westchester County

Date published: Sep 7, 1973

Citations

76 Misc. 2d 46 (N.Y. Sup. Ct. 1973)
349 N.Y.S.2d 890

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