Rodriguez v. Weinberg , 410 N.Y.S.2d 349 ( 1978 )

Proceeding pursuant to CPLR article 78 to review a determination of the respondent State Commissioner of Social Services, dated March 31, 1977, which, after a statutory fair hearing, affirmed the decision of the local agency to deny petitioner’s application for in-home day care services. Petition granted to the extent that the determination is annulled, on the law, without costs or disbursements, and the matter is remitted to the State commissioner for further proceedings consistent herewith. Under the circumstances presented herein, the determination was not based upon substantial evidence. Furthermore, the "rule” upon which the determination was based never became effective since it was not filed with the Department of State as required by section 8 of article IV of the New York State Constitution. Moreover, it appears from the record that the application for day care services was accepted for the period of October 28, 1976 to November 31,1976 [sic]. If the services were to be terminated, the applicant, petitioner, was entitled to certain procedural due process rights (see 18 NYCRR 358.8) which were not provided herein. The respondents should determine whether the provider of the services herein was fully qualified and, if so, the application for assistance should be granted. Hopkins, J. P., Damiani, Rabin and Shapiro, JJ., concur.