In the Matter of Elina Gutierrez, Petitioner, v. Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents

In the Matter of Elina Gutierrez, Petitioner, v Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents. [MAJORITY] — Proceeding pursuant to CPLR article 78 to review a determination of the respondent State commissioner, dated March 21, 1978 and made after a statutory fair hearing, which affirmed a determination of the local agency to reduce petitioner’s public assistance in order to recoup overpayments in the amount of public assistance furnished to her during the time her husband was allegedly living in the household. Petition granted to the extent that the determination is annulled, on the law, without costs or disbursements, and the matter is remanded to the respondent State commissioner for a new hearing in accordance herewith. A full transcript of the fair hearing was not made and the State commissioner did not make her determination on the basis of a complete record. The hearing officer’s informal handwritten notes could not form the basis for a proper determination (see Matter of Couball v Staszak, 70 AD2d 1027; Ostrowski v City of New York, 601 F2d 629). In addition, petitioner’s alleged misconduct may not serve to deprive her minor children of the assistance they are entitled to receive, without a finding of lack of need (see Matter of Farrone v Toia, 61 AD2d 983; Matter of Gunn v Blum, 48 NY2d 58). Hopkins, J. P., Damiani, Cohalan and Gibbons, JJ., concur.