This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 177
In the Matter of Crystal Hawkins,
            Appellant,
        v.
Elizabeth Berlin, &c., et al.,
            Respondents.




           Andrea G. Hood, for appellant.
           Claude S. Platton, for respondent Elizabeth Berlin.
           Scott Shorr, for respondent Robert Doar.




PIGOTT, J.:
           Under the Social Services Law, a recipient of public
assistance must assign to the State and social services district
his or her right to child support (see Social Services Law § 158
[5]).   The recipient is entitled to any support payments that
exceed the total amount of public assistance received (18 NYCRR
347.13 [f] [3]).   Respondents determined that no such excess

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                               - 2 -                         No. 177

existed in this case, and because their determination was not
arbitrary, capricious or erroneous as a matter of law, we affirm.
                                I.
          Beginning in December 1989, petitioner Crystal Hawkins
received public assistance from respondent New York City
Department of Social Services, also known as the New York City
Human Resources Administration (the City).1   In May 1990, she
gave birth to a son, Michael, who was added to her public
assistance case.   As a condition of receiving public assistance,
petitioner assigned her right to child support for Michael, which
the City then attempted to collect from Michael's father (see
Social Services Law §§ 158 [5], [6] [i]).
          In January 2007, the Social Security Administration
(SSA) determined Michael was eligible to receive Supplemental
Security Income (SSI), retroactive to September 2005.    Michael's
eligibility for SSI, however, made him ineligible for public
assistance.   The City removed him from petitioner's case in
January 2007 and canceled the assignment of support rights going
forward, though it continued to collect child support arrears
that had accrued prior to January 2007.2    SSA ultimately



     1
       As of 2001, petitioner received public assistance benefits
under the State's Safety Net Assistance Program (see Social
Services Law § 157 et seq.).
     2
       The record indicates that petitioner received
approximately $10,000 in child support payments directly from
Michael's father after 2007.

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                                - 3 -                         No. 177

reimbursed the City $1,232.50 for the public assistance benefits
it paid on Michael's behalf while his SSI application was
pending.
           In June 2011, petitioner requested what is called a
first-level desk review3 from the City to determine whether she
was owed any excess child support payments.      The City determined
no payments were owed because it had not collected sufficient
child support arrears to exceed the public assistance provided to
petitioner's household.   After learning of the City's
determination, petitioner requested a so-called second-level desk
review from respondent New York State Office of Temporary and
Disability Assistance (the State).      The State confirmed the
City's initial determination.
           Petitioner then commenced this CPLR article 78
proceeding challenging respondents' determinations as arbitrary,
capricious and erroneous as a matter of law.      Supreme Court
denied the petition and dismissed the proceeding, and a divided
Appellate Division affirmed (118 AD3d 496 [1st Dept 2014]).       The
majority concluded that respondents rationally determined no
payment was owed since the total amount of public assistance paid
to petitioner and her family exceeded the amount of child support



     3
       A first-level desk review is "an accounting of the
collections and disbursements made on behalf of a current or
former recipient of public assistance . . . who is or was
receiving child support enforcement services" (18 NYCRR 347.25
[a] [1]).

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                               - 4 -                           No. 177
arrears and other reimbursement the City collected when her
public assistance case closed in February 2007 (id. at 499-500).
The dissenting Justices agreed with the majority that petitioner
was not entitled to any child support collected on Michael's
behalf from September 2005 through January 2007 (id. at 502
[Gische, J., dissenting]).   They would have modified the City's
determination, however, "to the extent of remanding the matter
back for a recalculation of benefits paid to the family to
exclude those periods of time after 2007 when Michael was not
statutorily considered part of petitioner's family" (id.).
           Petitioner appealed as of right pursuant to CPLR
5601(a).
                                II.
           As a condition of receiving public assistance, a person
must assign to the state and local social services district "any
rights to support that accrue during the period that a family
receives [benefits]" (Social Services Law § 158 [5]).    The
assignment "terminates with respect to current support rights
upon a determination by the social services district that such
person is no longer eligible for" assistance (id.).    The
assignment does not terminate, however, with respect to "any
unpaid support obligation that has accrued" (id.).    Stated
differently, when the City determines that a person is no longer
eligible for public assistance, the assignment of current and
future support rights ends and the City may collect only those


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                               - 5 -                          No. 177
support payments that already accrued but have not yet been paid,
i.e., arrears.   Once support payments are current, they flow
directly to the person who is entitled to them.   At any time
during the assignment, the City may not collect arrears that
"exceed the amount of unreimbursed past assistance" it has paid
to the family (see 18 NYCRR 347.13 [f] [3]).
          Petitioner contends that she is entitled to current
child support payments the City collected from September 2005 to
January 2007 as well as child support arrears the City collected
after 2007.   Respondents rationally determined that petitioner is
entitled to neither of these sums.
          With respect to the payments from 2005 to 2007,
petitioner argues that the assignment of current support ended
when Michael became eligible for SSI and therefore ineligible for
public assistance.   Because SSA declared Michael eligible for SSI
retroactive to 2005, she claims his assignment terminated in 2005
and the City could not collect current support payments that
became due after that date.   Section 158 (5) of the Social
Services Law plainly states, however, that the assignment of
current support rights terminates "upon a determination by the
social services district" that the recipient is no longer
eligible for public assistance (Social Services Law § 158 [5]).
The City did not render a determination that Michael was
ineligible for public assistance until January 2007, when he
received his first SSI check (see Social Services Law § 158 [2]


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                                - 6 -                        No. 177
[a person becomes ineligible for public assistance when he begins
"receiving federal supplemental security income"]).    That SSA
made Michael's SSI benefits retroactive to 2005 does not change
the date of the City's determination, which the statute defines
as the operative time for terminating the assignment of current
support.
           Petitioner claims she is entitled to payments the City
collected from September 2005 to January 2007 for the additional
reason that SSA reimbursed the City for the benefits it paid on
behalf of Michael during that time.     According to petitioner, any
child support payments the City collected from Michael's father
over the same period necessarily exceeded the amount of
assistance it provided insofar as the assistance had already been
reimbursed by SSA.    Petitioner's claim sounds appealing but
ultimately fails.    Respondents properly credited SSA's
reimbursement check towards the total public assistance provided
to petitioner's family before 2007, and even with that credit,
there was no excess.
           With respect to arrears collected after 2007,
petitioner claims she is entitled to any payment that exceeded
the total amount of public assistance her family received.
Remember that, pursuant to the assignment, the City may collect
support payments that have already accrued so long as those
payments do not "exceed the amount of unreimbursed past
assistance" the City has provided to petitioner's family (18


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                                - 7 -                        No. 177
NYCRR 347.13 [f] [3]).    Respondents determined there was no
excess.    According to their calculations, the City had paid
petitioner's family $112,588.33 in public assistance from 1989
until 2011 and recovered only $57,524.00 in child support.
Deducting the $1,232.50 reimbursement check the City received
from SSA, respondents determined the City must collect $53,832.33
in child support arrears before petitioner will be entitled to an
excess.4
            Petitioner takes issue with respondents' calculation of
"unreimbursed past assistance" because it includes assistance
paid to petitioner's family after 2007 (until 2011), when Michael
was statutorily excluded from her public assistance budget (see
Social Services Law § 131-c [1] [individuals who are recipients
of federal supplemental security income benefits are not
"included in the household for purposes of determining
eligibility and grant amounts"]).    According to petitioner, the
City's right to collect child support arrears paid on Michael's
behalf is limited to the amount of unreimbursed past assistance
paid to the household that included Michael.    Allowing the City
to apply support for Michael to public assistance benefits that
excluded his needs, she contends, is directly contrary to the
Social Services Law.
            We need not decide whether respondents' calculations
are correct in order to conclude that their determinations were


     4
         Michael's father owes $46,172.71 in child support arrears.

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                                - 8 -                        No. 177
not arbitrary, capricious or erroneous as a matter of law,
because even petitioner's proposed calculation yielded no excess.
From 1989 until 2007, the City paid petitioner's family
$101,884.41 in benefits and has recouped only $58,756.50.     Thus,
under any calculation petitioner proposes, the City has not yet
collected child support arrears that exceed the unreimbursed
benefits her family received.
          Accordingly, the order of the Appellate Division should
be affirmed, without costs.




                                - 8 -
Matter of Crystal Hawkins v Elizabeth Berlin, et al.
No. 177




RIVERA, J.(concurring and dissenting in part):
     In this appeal, petitioner Crystal Hawkins presents the
Court with a question of statutory construction which the
majority has ill-advisedly chosen to avoid.   In my opinion, the
posture of the case requires that we resolve her claim that
respondents have misinterpreted the Social Services Law and, as a
result, miscalculated her public assistance and child support
arrears.   To do otherwise places petitioner at risk of future
erroneous determinations, even though her argument has merit and
entitles her to relief.   I, therefore, dissent from that portion
of the majority opinion that disposes of petitioner's claims
without resolving whether respondents have correctly interpreted
and applied the law to petitioner's case.
     As required by Social Services Law § 158 (5), petitioner, as
a recipient of subsistence payments under the State's Safety Net
Assistance program (SNA), on behalf of herself and Michael,
assigned to respondent New York City Human Resources
Administration (HRA), Michael's child support payments "that
accrue during the period that [the] family receives" public
assistance.   At the age of fifteen, Michael was found eligible
for federal Supplemental Security Income (SSI), making him
statutorily ineligible for ongoing SNA payments under Social

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Services Law § 158 (2).   Thereafter, as a direct result of his
status as an SSI recipient, and as mandated by Social Services
Law 131-c (1), respondents excluded Michael from petitioner's
household, for purposes of calculating future SNA payments to the
other members of petitioner's family (Social Services Law § 131-c
[1] ["For the purposes of determining eligibility for and the
amount of assistance payable. . . . The provisions of this
subdivision shall not apply to individuals who are recipients of
federal supplemental security income benefits"]).   Morever,
pursuant to state regulation, petitioner's family was considered
a separate household from Michael, even though Michael lived with
petitioner.   As provided for in 18 NYCRR 352.2 (b), "[f]or the
purposes of such monthly grants and allowances to households
under . . . Safety Net Assistance non-federally participating     .
. . children and adults residing with an SSI beneficiary must be
considered a separate household from the SSI beneficiary with
whom they live."
     Petitioner's assignment of Michael's child support
terminated by law once he was deemed ineligible for SNA because
he was receiving SSI.   Social Services Law § 158 (5) states
expressly that assignment of a person's support payment
"terminate[s] with respect to current support rights upon a
determination . . . that such person is no longer eligible for
[public assistance]."   However, the assignment remains in effect
"with respect to the amount of any unpaid support obligation that
has accrued during the period that a family received . . .


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assistance" (Social Services Law § 158 [5]).   In other words,
once Michael was removed from petitioner's household she was
entitled to future support payments, but not arrears for payments
that accrued during the period before Michael's exclusion (see
Social Services Law § 158 [5], 131-c [1]).
     As is her right, petitioner requested an accurate
"accounting of the collections and disbursements made on [her]
behalf" as a "former recipient of public assistance who is or was
receiving child support enforcement services" (18 NYCRR 347.25
[a] [1]).   I agree with the majority that petitioner is not
entitled to child support arrears HRA collected from January 2005
through September 2007.   The applicable statutory and regulatory
provisions establish that there is no legal impediment to HRA's
collection of child support payments assigned by petitioner under
Social Services Law § 158 (5), so long as the amount collected
does not exceed the remaining amount of unreimbursed public
assistance (Social Services Law § 158 [5]; 17 NYCRR 347.13 [f]
[3]).   Here, the child support collected through January 2007 was
credited against public assistance paid to petitioner's family,
and since, even under the calculation methodology advocated by
petitioner, HRA has not received support payments in excess of
public assistance payments actually provided to petitioner up to
2007, she has no claim to these support arrears.
     However, her claim for a proper determination of the child
support arrears has merit.   As explained in the determination of
the New York State's Division of Child Support Enforcement of the


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Office of Temporary and Disability Assistance (ODTA), for
accounting purposes, excess support payments consist of the
amount of child support recovered that is greater than the amount
of total cash assistance (minus any other reimbursements) paid to
petitioner for the entire period she was on public assistance.
Thus, ODTA calculated petitioner's benefits from 1989 to 2011,
subtracted from that amount the child support actually recovered
and the SSI reimbursement for Michael's interim payment, and
concluded that as of August 1, 2011, $53,832.33 in public
assistance remained unreimbursed.   Petitioner contends that it
was error to include in these calculations any payments for
periods from 2007, forward, when Michael was not part of
petitioner's household or budget for public assistance purposes.
She is correct.
     Social Services Law § 158 (5) expressly terminated
petitioner's assignment of Michael's support payments to HRA
because he was no longer eligible for SNA payments.   However, HRA
retained rights under the assignment for any arrears for the
period during which the family received SNA.   The critical
question, then, is whether Michael, as the person ineligible for
SNA, is part of the public assistance "family" only during those
periods when HRA actually provided Michael with SNA payments, or,
is Michael also part of the "family" by the mere fact that he
resides in petitioner's household, regardless of whether HRA
provides for his needs through the SNA program.
     Petitioner argues that "family" in Social Services Law § 158


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(5) does not include Michael because Social Services Law 131-c
(1) removed him from the household for public assistance
purposes, and the state's own regulations distinguish between an
SSI recipient and the "family with which the individual resides"
(18 NYCRR § 353.2 [a] [6]).   Respondents contend that Social
Services Law § 158 (5) refers only to when the assignment of
support begins and ends, not how to calculate how much public
assistance has been paid to petitioner's family for the purpose
of determining if the support payments exceeded the public
assistance payments.   They further argue that Social Services Law
§ 131-c (1) does not require that Michael be treated as separate
from petitioner's household for all purposes, and should be
limited in application to determinations of public assistance
eligibility and budget amounts.
     Respondents' construction of the statute cannot be squared
with the state's statutory and regulatory framework, which treats
Michael as a separate household for public assistance purposes
(see Social Services Law § 131-c [1]; 18 NYCRR § 353.2 [a] [6]).
That separate treatment is a direct consequence of his
ineligibility for ongoing SNA payments, meaning HRA did not
provide for his needs through the SNA program.   Also, to the
extent HRA continued to provide for petitioner, by legal mandate
it had to treat Michael as if he was no longer present in her
household.   As this Court stated in Matter of Melendez v Wing (8
NY3d 598, 604-605 [2007]), Social Services Law § 131-c (1),
mandates exclusion of SSI recipients from the public assistance


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household wherein they reside.    Thus, during the time Michael
received SSI payments and resided with petitioner, he was not
part of petitioner's public assistance "family."    In other words,
once he was excluded from petitioner's household, he was not part
of a family receiving SNA and child support within the meaning of
Social Services Law § 158 (5).    This may be a legal fiction, as
respondents argue, but it is a legal fiction that grounds
Michael's legal status, and it is this status that matters for
purposes of construing the social services law.
     Furthermore, as the dissent below correctly noted,
references to "family" and "families" in Social Services Law §
131 and Part 347 of the state regulations are only meaningful if
interpreted to include the person for whom child support payments
are collected.   Certainly, there would be no purpose to collect
and credit child support against the public assistance provided
to the family if the person receiving child support were not
included in the family's grant determination and budget.
     Respondents also contend that including Michael within the
family for purposes of Social Services Law § 158 (5), regardless
of his exclusion from the household for SNA-eligibility and grant
allocation purposes, is consistent with federal public assistance
legislation requiring assignment of child support by a member of
a family receiving public assistance (42 USC § 608 [a] [3]).*


     *
       42 USC § 608 (a) (3) states, "(3) No assistance for
families not assigning certain support rights to the State

A State to which a grant is made under section 603 of this title

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However, the federal statutory language cited by respondents does
not define "family," nor does it explicitly include as a member
of the public assistance household any person found ineligible
for assistance, but who is entitled to child support payments.
Thus, the federal statute provides no additional interpretive
guidance or support for respondents' construction of Social
Services Law § 158 (5).   Aside from the statutory argument
promoted by respondents, they assert two policy arguments in
support of their determination that the excess child support
calculation may include all public assistance provided to
petitioner.   First, they contend that their construction of
Social Services Law 158 § (5) aligns with the federal policy
reflected in 42 USC § 608, that child support for one person
should be used to offset public assistance to the entire family,
on the assumption that families generally share their resources
among all members.   This Court previously explained this "filing-
unit rule" "put[s] parents and minor siblings who lived together
into a single group whose combined income, resources and needs
were pooled for purposes of determining [public assistance]
eligibility and benefit level" (Matter of Melendez, 8 NY3d at


shall require, as a condition of paying assistance to a family
under the State program funded under this part, that a member of
the family assign to the State any right the family member may
have (on behalf of the family member or of any other person for
whom the family member has applied for or is receiving such
assistance) to support from any other person, not exceeding the
total amount of assistance so paid to the family, which accrues
during the period that the family receives assistance under the
program."


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604, citing to former 42 USC § 602 [a] [38], as added by DEFRA §
2640 [a] [3]).   Respondents second policy-based argument is that
the application of their methodology for calculating excess child
support maximizes distribution of limited governmental resources
to needy families by adding funds to public assistance programs.
     These arguments are unpersuasive.    In Matter of Melendez,
this Court held that our State Legislature specifically intended
that Social Services Law § 131-c (1) exclude SSI recipients from
application of the "filing-unit rule" (Matter of Melendez, 8 NY3d
at 605).   For the reasons I have already discussed, Social
Services Law 131-c (1) does not permit inclusion of an SSI
recipient as part of a public assistance household for the sole
purpose of offsetting that recipient's child support payments
against public assistance payments received by those with whom
the child resides.
     Furthermore, these policy arguments ignore the obvious
inconsistency of respondents' position.    If the legislative
intent of Social Services Law § 131-c (1) is to increase a
family's total resources by ignoring Michael's SSI payments when
determining a family's public assistance eligibility and budget
allocation, it would appear to undermine this laudable goal to
permit HRA to withhold from petitioner and Michael any excess
child support arrears--an obvious source of potential monetary
assistance.   Such result is particularly difficult to reconcile
with the overall statutory purpose of SNA and other public
assistance programs which provide a safety net for those members


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of our communities, like petitioner and Michael, who face dire
financial circumstances (Social Services Law § 131 [1]).
     The unfortunate truth is that Michael's father may never pay
the entirety of child support he owes, much less the pre-2007
arrears that cover the SNA payments actually provided for
Michael.    Nevertheless, under the law petitioner is currently
entitled to a correct accounting of her public assistance and
child support.    For that reason, I would remit for an appropriate
recalculation, meaning one that permits respondents to offset the
support payments HRA collected against the amount of public
assistance provided to petitioner during the periods when HRA
provided for Michael's needs through the SNA program.
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order affirmed, without costs. Opinion by Judge Pigott. Chief
Judge Lippman and Judges Abdus-Salaam and Stein concur. Judge
Rivera dissents in part in an opinion in which Judge Fahey
concurs.

Decided November 23, 2015




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