Opinion
December 31, 1979
Proceeding pursuant to CPLR article 78 to review so much of a determination of the respondent State commissioner, dated January 12, 1978 and made after a statutory fair hearing, as affirmed a determination of the local agency to reduce petitioner's public assistance in order to recoup overpayments made at a time when petitioner was alleged to have had income tax refunds as available resources. Petition granted to the extent that the determination is annulled insofar as reviewed, on the law, without costs or disbursements, and the matter is remanded to the respondent State commissioner for a new hearing in accordance herewith. The proceedings at the fair hearing were preserved by an electronic tape recorder. It is not denied that the typed transcript of the testimony at the hearing contains numerous omissions of words, phrases and/or sentences indicated by the word "unintelligible". Under these circumstances the transcript was not complete and the State commissioner's determination was not based upon a full record (see Matter of Gutierrez v. Blum, 73 A.D.2d 690). Damiani, J.P., O'Connor, Lazer and Rabin, JJ., concur.