Gandy v. Blum

Herlihy, J.,

concurs in the following memorandum. Herlihy, J. (concurring). While I am of the opinion that there was a rational basis for the decision of the commissioner, I agree that there should be a reversal in view of the recent decision of the Court of Appeals in Matter of French v Blum (54 NY2d 1017). Because of this and other decisions by the attorneys for petitioner herein, I feel that it is necessary to comment concerning their procedure. In his decision, the commissioner stated as follows: “It is noted, however, that reference was made at the hearing to extensive arrears for heating oil bills, although no exact proof was produced. If the appellant would present such proof to the agency the agency is directed to examine such proof, and if warranted adjust its recoupment accordingly.” It appears, however, that the attorneys for petitioner, instead of reapplying to the commissioner, undertook this appeal and there is before this court a record of 136 pages, a brief of 49 pages, with a 7-page appendix, and a reply brief of 6 pages. Under such circumstances, this a classic example of the waste of public funds and I would assess costs against petitioner’s attorneys, Mid-Hudson Legal Services, Inc.