State of New York
Supreme Court : County of Monroe

- against -

Index No. 98/2903

ANDREW V. SIRACUSE, J.

This is a motion for a preliminary injunction, met with a cross-motion to dismiss, in a proceeding to declare unconstitutional the provisions of Social Service Law § 117(3)(a), as enacted last year by L 1998 ch 436 (B) (6).¹ This section defines residency as presence in New York State for twelve continuous months, and subsection (3)(a) states:

Notwithstanding any other provision of law, no public assistance benefits shall be paid to or for any person who is not a resident of the state as provided in this article, except that assistance shall be provided to a person who is otherwise eligible during the first twelve months in the state at a rate not exceeding the higher of fifty percent of the amount otherwise payable or the standard of need applicable to the person under the laws of the state, if any, in which he or she resided immediately prior to arrival in this state, but under no circumstances may such allowances exceed the amounts payable to a resident under this chapter; and no assistance shall be provided for any alien who is not a resident of the state, as provided in this article, except as set forth in paragraph (b) of this section and except persons domiciled in the state on the effective date of this section. For purposes of this section, the standard of payment applicable in another state shall refer to a schedule of comparative grants to be promulgated biennially, setting forth the amount of that state's maximum standard of payment with respect to each such program, if any, for each household size for any state which financially participates in or mandates a program under title IV-A of the federal social security act or a general assistance or disability assistance program.

Plaintiff Jane Doe has challenged this provision as facially unconstitutional, both for herself and on behalf of any others who may be or are affected.

This statute bears a striking resemblance to the earlier section 131-a(3)(d), which had barred non-residents from receiving any more than their previous state's level of benefits for the first six months of their habitation in New York. That section provided for no benefits whatsoever if the state of previous residence had no non-federal welfare program. Under the prior law, then, emigrants from those states would have received no benefits for six months and then full New York benefits for the next six. Under the current law those same people would receive half the New York level of benefits for a twelve-month period. The difference seems chimerical.

The earlier statute was declared unconstitutional by this court in Brown v Wing (170 Misc2d 554, affd for reasons stated 241 AD2d 956). An even earlier statute with a built-in expiration date, which resembles the present statute but for a minimum of 80 percent of New York benefits instead of 50 percent, was declared unconstitutional by another Justice in Aumick v Bane (161 Misc2d 271).

It is important to note that Ms. Doe has been present in New York State since July of 1997, and so far has not received any diminution of benefits. It should also be noted that this is due, according to the defendant's papers, to the complexity of the computer programming necessary to carry out the details of the statutory mandate. At no point has the State given any assurance that the section would not be put into effect; the Attorney General's detailed and carefully-argued papers merely state that it is "highly uncertain whether the statute will be implemented prior to July 1998, when a full year will have elapsed after plaintiff Doe's entry into New York State."

The State has argued that because neither Jane Doe nor any other resident is as yet affected by the statute, the question is not ripe for review, and the question of any loss or harm to the plaintiff or the class is speculative at best. The State vigorously urges the court to follow the Court of Appeals case of Church of St. Paul and Andrew v Barwick (67 NY2d 510), noting that no application for relief has been denied and the plaintiff cannot come before this court with her administrative remedies exhausted.

In reply the plaintiff distinguishes Church of St. Paul because the present case poses a facial constitutional challenge to the statute, whereas in the earlier case the issue was the purportedly unconstitutional result of action which might be taken -- but had not been -- under a law that had withstood a facial constitutional challenge. In spite of the Assistant Attorney General's strong advocacy, the court must find with the plaintiff. The statute is clear on its face, and once it is implemented the results of any administrative process would be a foregone conclusion, during which time the plaintiff might well be harmed by its effects. Secondly, while the implementation date is as yet uncertain, it is nonetheless inevitable. It would benefit both the state and the plaintiff to resolve the merits of this case before rather than after that date. Finally, the harm to the plaintiff may be minimal at present, but in the court's opinion the constant fear of a sudden reduction in benefits is sufficient to assure the vigorous prosecution of the action which is the raison d'etre of the justiciable-controversy rule.

The Court relies on such Court of Appeals cases as East Meadow Assn. v Board of Educ. (18 NY2d 129), which dealt with a school board's refusal to permit a concert by folk singer Pete Seeger because of his opposition to the war in Vietnam. By the time the case reached the Court of Appeals the scheduled concert date had long passed, but the Court noted:

The plaintiff has been engaged in the presentation of concerts for a very long time and there is every indication that it will continue to present them in the future. Under these circumstances, even though Seeger may not be actually scheduled at this time to appear in another of the plaintiff's concerts, the differences between the plaintiff and the defendant give rise to a "justiciable controversy", for which a declaratory judgment would be an appropriate remedy (18 NY2d, at 135).

In general, the Court of Appeals has sought to broaden the opportunities for constitutional challenge (Boryszewski v Brydges, 37 NY2d 361, 364), and to dismiss this action because the implementation of the statute is proving to be a lengthy process would merely postpone resolution of the issue to a time when more people are in a position to allege substantial harm. For these reasons the motion to dismiss is denied.

Because the cross-motion to dismiss was interposed, the case is not ready for a full determination on the merits. Because the implementation date is uncertain, the court has itself considered the propriety of a temporary injunction. All parties have consented to argue the merits of the action in mid-June. Although it is unlikely that the statute can be implemented so soon, the court in its discretion has determined that the plaintiff should be entitled to provisional class certification, pending further order, and that until an order and judgment is filed after the argument on the merits the State and its agents are hereby enjoined from implementing or enforcing the provisions of Social Services Law § 117. The status quo will thus be maintained until the constitutional question is dealt with. Counsel for the plaintiff may prepare the order, on appropriate notice to the Attorney-General.

DATED: Rochester, New York

May 14, 1998

Andrew V. Siracuse, J.S.C.

RETURN

The decision on the merits was rendered July 30, 1998; the Court held the statute to be unconstitutional.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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