70 A.D.2d 808 | N.Y. App. Div. | 1979
— Judgment, Supreme Court, Bronx County, entered August 15, 1978, dismissing the petition under CPLR article 78, reversed, on the law, and the petition granted, amending the determination of March 14, 1978, of respondent State Commissioner of Social Services which directed restoration of benefits to petitioner, to make the same retroactive to the date of discontinuance thereof, July 20, 1977, without costs. The benefits payable to petitioner were discontinued on the last mentioned date, based on an erroneous determination that petitioner’s husband was living in the household. The error was not corrected until petitioner established the contrary at a fair hearing. The direction to restore benefits compounded the error, after finding that the determination of discontinuance was improper, by invoking the wrong section of the regulations, 18 NYCRR 352.31 (f), and fixing the date to which restoration was to be retroactive thereunder at "October 21, 1977, two months preceding the month in which the error was discovered.” That section applies to situations in which the department itself discovers and corrects its error, not that found here. The correct section in the circumstances is 18 NYCRR 358.20: "Correction of Error. When a fair hearing decision has ordered the correction of a discontinuance, the correction of a denial of an application for assistance, or the correction of the amount of assistance, a grant shall be made to cover the full amount to which the applicant as recipient was entitled in accordance with the decision for the entire period from the date the incorrect action was taken.” Correction is required accordingly. Concur — Murphy, P. J., Birns, Fein, Markewich and Ross, JJ.
