De Patto v. Weinberg , 75 A.D.2d 870 ( 1980 )

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent State Commissioner of Social Services, dated December 5, 1978 and made after a statutory fair hearing, which affirmed a determination of the local agency reducing petitioner’s grant of public assistance, petitioner appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Rockland County, entered July 24, 1979, as dismissed the petition and affirmed the determination. Judgment reversed, insofar as appealed from, on the law, without costs or disbursements, and petition granted to the extent that the determination is annulled and the matter is remitted to the State commissioner for a new determination in accordance herewith. The respondent State commissioner improperly based her decision on 18 NYCRR 351.2 (e) (2) (iv). This regulation formed no part of the fair hearing evidence. Rather, the summary and the hearing itself dealt with petitioner’s rights under 45 CFR 232.12. In reviewing the fair hearing, the State commissioner could not use as justification for her decision a regulation which played no rule in said hearing. Rabin, J. P., Cohalan, Martuscello and Weinstein, JJ., concur.