Petitioner's application for an order pursuant to CPLR Article 78, annulling Decision After Fair Hearing no. 6166992Y, directing respondents to restore retroactive supplemental security income benefits recovered, and declaring that New York State Office of Temporary and Disability Assistance cannot recover federally funded rental assistance payments, is denied in its entirety. Respondents' cross-motions to dismiss pursuant to CPLR 3211(a)(2), (a)(5), and (a)(7), are granted, and the proceeding is dismissed without costs and disbursements to either party.

Petitioner Geoffrey Nicholls received rental assistance from HIV/AIDS Services Administration ("HASA"), a division of New York City Human Resources Administration ("HRA"), while his application for federal supplemental security income ("SSI") benefits was pending. New York State Office of Temporary and Disability Assistance ("OTDA") is the executive agency responsible for supervising the operation and administration of all public assistance programs in New York State.

In or about February 2012, petitioner's application for SSI benefits was approved with a retroactive payment date of February 28, 2012. HRA determined that from March 2012 through July 2012, petitioner received interim assistance in the amount of $9,512. On July 18, 2012, HRA deducted $3,140 from petitioner's initial SSI benefits payment, and determined that he was not entitled to a refund from the initial SSI payment (the "July 18, 2012 determination").

On July 30, 2012, petitioner requested a fair hearing to contest the July 18, 2012 determination. Petitioner alleged that HRA failed to delineate the portion of interim assistance that was federally funded, thereby violating federal regulations. On October 11, 2012, an administrative law judge rendered a Decision After Fair Hearing ("DAFH") remanding back to [*2]HRA its July 18, 2012 determination, and ordering HRA to immediately recompute the determination (the "October 11, 2012 DAFH"). The administrative law judge determined that it was unclear whether petitioner had received federally funded rental assistance, and if so, whether HRA had properly excluded federal funds from its calculation of interim assistance paid to petitioner. By letter dated October 18, 2012, HRA denied petitioner's request for a refund from his initial SSI benefits payment, as it was determined that petitioner had participated in the HASA program, which is 100% state and locally funded (the "October 18, 2012 determination"). Petitioner did not request a fair hearing to challenge HRA's October 18, 2012 determination.

On January 30, 2013, petitioner commenced the instant proceeding to annul the October 11, 2012 DAFH. Petitioner avers that the October 11, 2012 DAFH is arbitrary and capricious, an abuse of discretion, and contrary to law because (1) HRA did not meet its burden of proof that it had authority to recover the interim assistance; (2) OTDA did not follow mandatory procedural requirements prior to recovering the interim assistance; and (3) OTDA failed to address HRA's failure to provide evidence that petitioner agreed to have the agency recover interim assistance pending approval of his SSI benefits application.

OTDA cross-moves to dismiss on the grounds that (1) the proceeding is barred by res judicata; (2) the proceeding is moot; and (3) petitioner failed to exhaust administrative remedies. In addition to the foregoing, HRA cross-moves to dismiss on the grounds that (1) petitioner failed to state a cause of action; and (2) declaratory relief is improper.

On a motion to dismiss under CPLR 3211(a)(7), "a complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every favorable inference, a cause of action exists." Rovello v. Orofino Realty, Co., 40 NY2d 633, 634 (1976); see also, Leon v. Martinez, 84 NY2d 83 (1994). Affidavits submitted by plaintiff can remedy any defects in the complaint. Id. at 635. "The test is whether the pleadings give adequate notice to the court and the adverse party of the transactions or occurrences intended to be proved." Stern v. Consumer Equities Assocs., 160 AD2d 993, 994 (2nd Dept. 1990). Moreover, on a motion to dismiss for failure to state a cause of action, "it is not the function of the court to evaluate the merits of the case," nor to "express an opinion as to plaintiff's ability to ultimately establish the truth of the averments." Khan v. Newsweek, Inc., 160 AD2d 425, 426 (1st Dept. 1990).

Once an application for SSI benefits is approved, the state may recover any interim assistance advanced that was state and locally funded, however federal funds are non-reimbursable. 42 U.S.C. §1383(g); Social Services Law ("SSL") §211(5); 18 N.Y.C.R.R. §353.2(a)(1), (2), and (5). Here, petitioner received rental assistance from HASA, a division of HRA, which is 100% state and locally funded. Petitioner is incorrect in alleging that he received federally funded shelter assistance from the Housing Opportunities for Persons with AIDS ("HOPWA") Program. (Negron Aff., ¶19). Accordingly, the proceeding is dismissed pursuant to CPLR 3211(a)(7). [*3]

If a recipient of interim assistance objects to HRA's determination of interim assistance recovery, the recipient can request OTDA to hold an evidentiary hearing to review the determination. Thereafter, a recipient may challenge OTDA's DAFH by commencing a CPLR Article 78 proceeding. See SSL §22; 18 N.Y.C.R.R. §358-3.1(b)(15). Here, petitioner challenges the October 11, 2012 DAFH, but the DAFH was superseded and rendered moot by the October 18, 2012 subsequent recalculation of the July 18, 2012 determination. Petitioner did not challenge the October 18, 2012 determination, and therefore failed to exhaust his administrative remedies. Watergate II Apartments v. Buffalo Sewer Authority, 46 NY2d 52 (1978); Frumoff v. Wing, 239 AD2d 216 (1st Dept. 1997); Matter of Privott v. Hansell, 2009 N.Y.Misc. LEXIS 4530 (Sup Ct NY County 2009). Accordingly, the proceeding is dismissed pursuant to CPLR 3211(a)(2).

On a motion to dismiss under CPLR 3211(a)(5), a complaint may be barred by res judicata based on the preclusive effect of a prior class action settlement. Hotel 57 L.L.C. v. Tyco Fire Prods., 59 AD3d 305 (1st Dept. 2009). Here, petitioner's claims are barred by the doctrine of res judicata, as petitioner's allegations, taken as true, render him a class member in Doe et al. v. Doar, No. 11-cv-6943 (S.D.NY) (Dckt. No. 47), whereby a United States district court judge entered a final stipulation and order of settlement determining that all HOPWA funded payments are excluded from interim assistance determinations. (Arz Aff., exhibit 2). Accordingly, the proceeding is dismissed pursuant to CPLR 3211(a)(5).

"The jurisdiction of this Court extends only to live controversies." Saratoga County Chamber of Commerce v. Pataki, 100 NY2d 801, 810 (2003). Petitioner's request for declaratory relief that OTDA cannot recover federally funded payments from interim assistance recovery is moot, as petitioner did not receive HOPWA funded assistance, and such relief has already been decreed in Doe et al. v. Doar, supra. Accordingly, petitioner's application for a declaratory judgment is denied pursuant to CPLR 3211(a)(2).

Accordingly, it is hereby,

ADJUDGED that petitioner's application for an order pursuant to CPLR Article 78, annulling DAFH no. 6166992Y, directing respondents to restore all retroactive SSI benefits recovered, and declaring that New York State Office of Temporary and Disability Assistance cannot recover federally funded payments from interim assistance, is denied in its entirety. Respondents' cross-motions for dismissal pursuant to CPLR 3211(a)(2), (a)(5), and (a)(7), are granted and the proceeding is dismissed without costs and disbursements to either party.

Dated:July 23, 2013

ENTER: [*4]

________________________

J.S.C.