time of the fair hearing in New York

2010Under the particular circumstances of this case, there was an insufficient basis for the determination of the State of New York Department of Health (hereinafter DOH) upholding DSS’s denial of benefits (see Matter of Estate of Eichna v Demarzo, 52 AD3d 513 [2008]; Matter of Taylor v Bane, 199 AD2d 1071 [1993]; Matter of Segall v D’Elia, 92 AD2d 897 [1983]).

2008Under the particular circumstances of this case, there was an insufficient basis for NYSDOH’s determination affirming DSSCS’s denial of benefits (see Matter of Taylor v Bane, 199 AD2d 1071 [1993]; Matter of Segall v D’Elia, 92 AD2d 897 [1983]).

2010Under the particular circumstances of this case, there was an insufficient basis for the determination of the State of New York Department of Health (hereinafter DOH) upholding DSS’s denial of benefits (see Matter of Estate of Eichna v Demarzo, 52 AD3d 513 [2008]; Matter of Taylor v Bane, 199 AD2d 1071 [1993]; Matter of Segall v D’Elia, 92 AD2d 897 [1983]).

2008Under the particular circumstances of this case, there was an insufficient basis for NYSDOH’s determination affirming DSSCS’s denial of benefits (see Matter of Taylor v Bane, 199 AD2d 1071 [1993]; Matter of Segall v D’Elia, 92 AD2d 897 [1983]).

2010Under the particular circumstances of this case, there was an insufficient basis for the determination of the State of New York Department of Health (hereinafter DOH) upholding DSS’s denial of benefits (see Matter of Estate of Eichna v Demarzo, 52 AD3d 513 [2008]; Matter of Taylor v Bane, 199 AD2d 1071 [1993]; Matter of Segall v D’Elia, 92 AD2d 897 [1983]).

2003In any case, by the time of the fair hearing and based on the testimony adduced there, the City had sufficient information to verify that the petitioner had no reportable income for benefit purposes. ( See Matter of Care v Wing , 297 AD2d 809, 811-812 [2d Dept 2002].) The fair hearing conducted by the State respondent was also flawed and impermissibly shifted the burden to the petitioner. 18 NYCRR 358-5.9 (a) provides that "[e]xcept, where otherwise established {** 3 Misc 3d at 585 }by law or regulation, in fair hearings concerning the discontinuance, reduction or suspension of public assistan

1979We are satisfied that the commissioner’s determination that these assets were transferred in order to qualify for medical assistance finds sufficient support in the record (Matter of McManus v D’Elia, 66 AD2d 783 ).

1978However, Special Term was correct when it held that: "The court notes that the limitations of section 135-a of the Social Services Law are inapplicable herein since the alleged notification to petitioner does not appear to meet the requirements to start the running of the statute in that it does not contain notice of availability of a fair hearing (Kantanas v Wyman, 38 AD2d 849 ).” (See, also, Matter of Laneve v Toia, 95 Misc 2d 659 .) There is no merit to respondents’ contention that petitioner waived the notice defect by participating in the fair hearing, etc. Respondents overlook the fact t

1978In our opinion, the evidence adduced was insufficient to overcome petitioner’s testimony that she received no support payments from her husband after February, 1977 (see Matter of Lausell v Lavine, 55 AD2d 649 ; Matter of Ford v Dumpson, 47 AD2d 621 ; Matter of Cedeno v Lavine, 46 AD2d 687 ).

1978In our opinion, the evidence adduced was insufficient to overcome petitioner’s testimony that she received no support payments from her husband after February, 1977 (see Matter of Lausell v Lavine, 55 AD2d 649 ; Matter of Ford v Dumpson, 47 AD2d 621 ; Matter of Cedeno v Lavine, 46 AD2d 687 ).

1978In our opinion, the evidence adduced was insufficient to overcome petitioner’s testimony that she received no support payments from her husband after February, 1977 (see Matter of Lausell v Lavine, 55 AD2d 649 ; Matter of Ford v Dumpson, 47 AD2d 621 ; Matter of Cedeno v Lavine, 46 AD2d 687 ).

1978Under the circumstances presented here and in light of the fact that petitioner was still receiving her grant, the exclusive procedure to recover the overpayment was through recoupment out of future benefits pursuant to section 106-b of the Social Services Law (Perez v Dumpson, 58 AD2d 887 ).

1978However, Special Term was correct when it held that: "The court notes that the limitations of section 135-a of the Social Services Law are inapplicable herein since the alleged notification to petitioner does not appear to meet the requirements to start the running of the statute in that it does not contain notice of availability of a fair hearing (Kantanas v Wyman, 38 AD2d 849 ).” (See, also, Matter of Laneve v Toia, 95 Misc 2d 659 .) There is no merit to respondents’ contention that petitioner waived the notice defect by participating in the fair hearing, etc. Respondents overlook the fact t

1978However, Special Term was correct when it held that: "The court notes that the limitations of section 135-a of the Social Services Law are inapplicable herein since the alleged notification to petitioner does not appear to meet the requirements to start the running of the statute in that it does not contain notice of availability of a fair hearing (Kantanas v Wyman, 38 AD2d 849 ).” (See, also, Matter of Laneve v Toia, 95 Misc 2d 659 .) There is no merit to respondents’ contention that petitioner waived the notice defect by participating in the fair hearing, etc. Respondents overlook the fact t

1977While it is true that the State regulation in question was not in effect at the time of the fair hearing decision, its corollary on the Federal regulations (45 CFR 233.20 [a] [4] [ii] [d]) has been in effect since May 9, 1970. (35 Fed Reg 7301-7302) "It has long been held that a regulation by a department of the government addressed to and adapted to the enforcement of an act of Congress, the administration of which is confined . to such department has the force and effect of law.” (Brown v Bates, 363 F Supp 897, 902 .) Under the Supremacy Clause of the United States Constitution, (US Const, a