David A. Weinstein, J.

Legal Aid Society of Northeastern New York, Inc. Attorneys for Petitioner By: Victoria M. Esposito, Esq., of Counsel, and Amelia R. Nicoletti, Esq., of Counsel 95 Central Avenue Albany, New York 12206 Letitia A. James, Esq. New York State Attorney General Attorney for Respondent (By: Chris Liberati-Conant, Assistant Attorney General) The Capitol Albany, New York 12224-0341 David A. Weinstein, J.

In this hybrid Article 78 petition and declaratory judgment action, petitioner Jessica Torres seeks retroactive State Supplemental Program ("SSP") benefits of $23 per month for the five months between June 1 and October 31, 2015, for a total of $115. The case is one of three raising similar issues which are the subject of opinions I issue today, the other two being Goyer v Roberts, No. 4694-18 and Sherwood v Roberts, No. 904631-18. The petition names as respondent Samuel D. Roberts, the former Commissioner of the Office of Temporary and Disability Assistance ("OTDA" or the "Agency"), the government office responsible for administering the SSP program, and OTDA's SSP Director, Denis Sheehan.

The SSP Program and its Governing Regulations

Under federal law, disabled individuals who meet the requisite qualifications are entitled to receive monthly Social Security Disability Insurance ("SSD") benefits paid by the Social Security Administration ("SSA") under Tittle II of the Social Security Act. An individual can receive SSD only if he or she became insured by working and paying into the Social Security system for a certain period of time (Oral Argument Transcript ["Tr"] 7-8). The SSA also provides Supplemental Security Income ("SSI") benefits to individuals who are blind, aged or disabled, and whose income falls within particular limits (see 42 USC § 1382). Once an applicant is judged eligible for SSD benefits, he or she must await the conclusion of a five-month waiting period before benefits are provided, during which the individual may receive SSI benefits (Tr 7).

States have the option to augment the federal SSI and SSD benefits, and by regulation New York has created the SSP, which gives additional benefits to those who are eligible for SSI, or would have been eligible except that they exceed the income cap (see 18 NYCRR 398-1.1). No separate application for SSP is necessary; an application for federal SSI benefits is deemed a concurrent application for the state benefits (see 18 NYCRR 398-4.1[a]). To be eligible for SSP, an individual must among other things have "monthly countable income less than the State standard of need," as defined in the Social Services Law (see 18 NYCRR 398-4.2[a][3]). An individual's eligibility for SSP is determined "on the basis of the data supplied by the Federal SSA through the State Data Exchange ("SDX"), information provided by the applicant . . . and other information available to the Office" (18 NYCRR 398-4.3).

Until October 1, 2014, the federal SSA administered the New York SSP program by agreement with the State (Pet Mem at 1-2). At that time, New York took over the program, although SSA continued to administer retroactive SSP payments until October 1, 2015 (id. at 2). Under the regulations governing SSP, the disability determinations of SSA are binding upon OTDA, notwithstanding the State's administration of the program (see 18 NYCRR 398-4.3).

The structure of the SSP program outlined above can result in the following scenario: By the time an applicant has been deemed eligible for SSI by the SSA — and potentially eligible for SSP — his or her income has been augmented by SSD benefits, which place her above the income cap for state benefits. Thus, the only period during which that individual may be within the income threshold for SSP is the five-month waiting period for SSD — a period that has already passed by the time eligibility is established.

The Case of Ms. Torres

The petition now before me sets forth the following allegations: Petitioner Jessica Torres applied for SSI and SSD on May 14, 2015, which constituted a concurrent application for SSP benefits to OTDA (see Pet ¶ 5, Ex A at 1). The applications for SSI and SSD were denied, and Torres sought a hearing to challenge the denial (Pet ¶ 5, Ex C). The requested hearing was conducted by an administrative law judge ("ALJ"), and by written decision issued August 21, 2017, and notice dated September 12, 2017, the SSA found that Torres was eligible for SSD benefits effective October 2015 (Pet ¶ 7, Ex A at 1). OTDA then sent petitioner a notice stating that she was not eligible for SSP benefits because her "total SSP countable monthly income exceed[ed] the maximum benefit amount for [her] living arrangement," a finding " "based on Regulations at 18 NYCRR Part 398.4.2(a)" "(Pet, Ex E). That regulation set out the requirements for SSP, under which the applicant must:

"(1) be aged, blind or disabled in accordance with the requirements of this Part and Title XVI of the Federal Social Security Act . . . ;

(2) be in receipt of Federal SSI benefits or be eligible to receive SSI benefits except for reasons of income;

(3) have monthly countable income less than the State standard of need as set forth in section 209 of the Social Services Law; and

(4) be living in New York State with the intention of making his or her home in New York State, but is not required to maintain a permanent residence or fixed address. . . . "

On September 26, 2017, the SSA found Torres eligible for SSI benefits effective May 1, 2015 (Pet ¶ 9, Ex A at 2). By e-mail dated November 8, 2017, Torres wrote OTDA asking that she be provided retroactive SSP benefits from June 2015 through October 2015, i.e., for the five-month SSD waiting period, during which she had been retroactively found eligible for SSI, and her income (since SSD was not yet counted) was low enough to qualify for State SSP benefits (Pet ¶ 10 & Ex G). That request was the subject of a fair hearing on January 18, 2018.

A decision on the fair hearing issued April 26, 2018, and signed by an individual identified as "Commissioner's Designee" (the "Designee"), noted that Torres' attorney did not dispute the determination that she was not eligible for SSP benefits except retroactively for June through October 2015 (Pet, Ex A at 2). In regard to this period, the Designee found that while the ineligibility decision "may have been correct when made," given the subsequent SSA determination that petitioner had been eligible for SSI effective May 2015, it had "not been established that [Torres] was ineligible for SSP benefits or that any other reason exists for denying retroactive benefits" (id. at 7). The Designee found that, in light of petitioner's eligibility for SSP during this period, the Agency's "reliance on 18 NYCRR 398-11.3 is misplaced" (id.). The Designee also indicated that several other fair hearing determinations had reached a similar conclusion (id.).

In light of these conclusions, the Designee directed OTDA to "[e]valuate the Appellant's eligibility for SSP benefits for the period of June 2015 to October 2015 taking into consideration the SSA determination that the Appellant was eligible for SSI benefits for these months"; provide "written notification" regarding such eligibility; and "[i]f the Appellant is determined eligible for SSP benefits for the period of June 2015 to October 2015, provide benefits consistent with a verified degree of need" (id. at 8 [emphasis added]).

On May 18, 2018, Torres' counsel wrote OTDA, noting that no retroactive SSP benefits had been paid to her, and "request[ing] that the State Supplemental Program comply immediately with the ALJ's decision" (Pet, Ex I). Subsequently, a notice was sent to Torres from the SSP Fair Hearings Unit stating that following a review, the agency could not issue retroactive benefits to her "due to New York State's SSP regulations" (Pet, Ex J). Specifically, the letter cited 18 NYCRR 398-4.2(a)(2) for the proposition that "an individual . . . must be in receipt of federal [SSI] benefits or be eligible to receive SSI benefits except for reason of income" in order to be eligible for SSP benefits — i.e., no retroactive benefits that could be paid during a time the applicant was ineligible (id.). The letter also opined that under 18 NYCRR 398-4.3, the Agency had to determine entitlement to SSP benefits "on the basis of the data supplied by the SSA . . . via the State Data Exchange" and that the request for SSP benefits constituted an application to correct an underpayment under 18 NYCRR 398-11.3, and there could be no such correction for an individual ineligible to receive SSP at the time the determination was made, regardless of her earlier entitlement (id.).

On the basis of the above, the Fair Hearings Unit found that Torres "never had an active SSP case," and was not "presently eligible for either SSI or SSP benefits" (id.). Therefore, it determined that she was not entitled to receive "retroactive SSP benefits" for June through October 2015 (id.).

After a complaint by Torres' attorney, OTDA issued a letter dated June 7, 2018, stating that a review "confirm[ed] that the agency has taken appropriate action to comply with the directives of the Decision After Fair Hearing" (Pet, Ex K).

Petitioner now argues that as a result of the Designee's decision, respondents had a non-discretionary duty to effectuate retroactive payment of benefits, and mandamus is an appropriate remedy under which the Court may direct respondents to ensure that such payments are made.

In opposition, respondents submit the affidavit of respondent Sheehan and a memorandum of law. In Sheehan's description of the SSP program, he notes in particular that OTDA relies on information received from the SSA in a datafile called the "State Data Exchange" for its eligibility determinations (Sheehan Aff ¶ 6). State regulations specifically provide that OTDA is to determine eligibility for SSP benefits "on the basis of the data supplied by the federal SSA through the State Data Exchange," as well as information provided by the applicant (id. ¶ 10 [citing 18 NYCRR 398-4.3]).

The Exchange provides OTDA with the names of those who (1) receive SSI; and (2) would be eligible for SSI except that their income is above the Federal Benefit Rate (id.). Sheehan notes that while those in the first category are eligible for SSP, the latter may not be depending on whether their income meets New York's "Standard of Need," an amount higher than the Federal Benefit Rate (id. ¶ 6 & n 2). According to Sheehan, New York does not receive data on individuals who would have been eligible for SSI in the past but are not now, or may later be eligible for retroactive SSI benefits due to a successful appeal (id. ¶ 8). Rather, when an individual is found in "active pay status for SSI benefits" or ineligible for such benefits due to excess income, that information is transmitted to OTDA via the Datafile, and benefits are issued (id. ¶ 12). But if that individual is determined presently ineligible for SSP, OTDA informs the applicant, without regard to whether he or she may have been eligible in the past (id. ¶¶ 12-13).

Because the data received from the SSA does not allow the Agency to determine retroactive eligibility, Sheehan contends that a reading of the regulations like that urged by petitioner would entail imposition of "significant structural costs upon the operation of the SSP program" (id. ¶ 17). In addition, he asserts that such retroactive payment of benefits would be of little benefit to the recipients, since the majority of retroactive payments are "actually recovered (in whole or in part) by local social service districts for State-funded temporary assistance benefits provided while the recipients awaited their SSA determinations" (id. ¶ 18). Sheehan also argues that retroactive payments are inconsistent with the goal of the SSP program to "provid[e] for the current, ongoing needs of recipients," in light of the finite amount of tax revenue that there is to spend on such benefits (id. ¶ 16).

As a legal matter, respondents' position is that under the governing regulations SSP benefits may not be paid retroactively to individuals who were initially eligible for SSI, but are no longer when the application is ripe for determination (id. ¶ 14; Resp Mem of Law at 8-9). Sheehan asserts generally that State policy concerning retroactive SSP benefits "has been consistent since October 2014" (Sheehan Aff ¶ 15).

In addition to the parties' written submissions, on December 14, 2018, oral argument was conducted in this case and in the two companion Article 78 petitions.

Discussion

I. Article 78

In an Article 78 proceeding, this Court may overturn an administrative determination only if it "was arbitrary and capricious, lacked a rational basis or was affected by an error of law" (Matter of Abramoski v New York State Educ. Dept., 134 AD3d 1183, 1185 [3d Dept 2015], lv dismissed and denied 27 NY3d 1044 [2016]). The central argument behind the petition before me is a simple one: the Agency has acted in violation of law because it failed to adhere to the Designee's decision following the fair hearing.

The Designee's ruling is subject to Part 358 of Title 18 (see 18 NYCRR 398-10.3), which provides that a fair hearing determination "is final and binding upon social services agencies and must be complied with in accordance with section 358-6.4 of this Subpart" (18 NYCRR 358-6.1[b]). As relevant here, section 358-6.4(c) provides that "[u]pon receipt of a complaint that a social services agency has not complied with the fair hearing decision, the commissioner . . . will secure compliance by whatever means is deemed necessary and appropriate under the circumstances of the case."

Here, the decretal paragraphs of the fair hearing directed the Agency to do the following:

"1. Evaluate the Appellant's eligibility for SSP benefits for the period of June 2015 to October 2015 taking into consideration the SSA determination that the Appellant was eligible for SSI benefits for these months;

2. Following the evaluation, provide written notification to the Appellant regarding her eligibility for SSP benefits for the period of June 2015 to October 2015; and

3. If the Appellant is determined eligible for SSP benefits for the period of June 2015 to October 2015, provide benefits consistent with a verified degree of need" ( id. at 8 [emphasis added]).

There are two things to note about this. First, under the third paragraph, the only criteria relevant to the Designee for determining payment was whether Torres was eligible for benefits during the five month period in 2015 for which she claims the benefits are owed, not — as the Agency now maintains — whether she was eligible "when her request for retroactive SSP benefits was made" (Resp Mem at 1). Moreover, it is just not so that the Designee did not "direct OTDA to pay petitioner" (id. at 7). The decision said explicitly that, so long as their was eligibility for the relevant period, the Agency was to "provide benefits" consistent with need. Indeed, the Designee stated earlier in his ruling: "The record in this case establishes that, for the period for which retroactive payments have been requested, the Appellant was eligible for SSI," and "[d]espite the Agency's contention to the contrary, on this record, it has not been established that the Appellant was ineligible to receive SSP for that period [and thus] the Agency's reliance on 18 NYCRR 398-11.3 is misplaced" (Pet, Ex A at 7).

Try as they might, the respondents cannot get around the fact that the hearing decision makes clear that, on the record before the heaving officer, Torres was eligible for and was to be provided benefits, while the Agency's later letter found ineligibility based on an entirely different test than that propounded by the Designee. The only question that the post-hearing determination seems to leave open was whether there were additional facts outside the record before the hearing officer which might call this conclusion into question. Instead, the Agency simply rejected the decision's rationale, finding that unless petitioner was eligible for SSP at the time her application was considered, she could not obtain retroactive benefits. That position is simply not consistent with the Designee's post-hearing decision.

Respondents concede: "it is true that OTDA must comply with fair hearing decisions" (Resp Mem of Law at 6). Indeed, OTDA regulations provide that "[u]pon issuance, the [fair hearing] decision is final and binding upon social services agencies and must be complied with" (18 NYCRR 358-6.1 [emphasis added]). Respondents' position is that they abided by the Designee's determination, since "[a]s directed, OTDA considered Ms. Torres' SSI eligibility with regard to such period in light of OTDA's regulation at 18 NYCRR 398-11.3 and concluded that New York was precluded from paying retroactive SSP benefits to an individual who is not currently eligible to receive SSP benefits at the time they request retroactive payment" (Sheehan Aff ¶ 23). For reasons stated above, that assertion does not survive even a cursory reading of the Designee's decision. Rather, what happened here is the Agency refused to grant the relief ordered following a fair hearing, and that failure is appropriately subject to correction in an Article 78 proceeding (see Matter of Shvartszayd v Dowling, 239 AD2d 104, 104-105 [1st Dept 1997] [State's failure to enforce City's compliance with State fair hearing decision was not "substantially justified"]; Matter of Parker v Fahery, 74 AD2d 669 [3d Dept 1980] [denying County's motion to dismiss Article 78 petition, when it had failed to make payment when it had been ordered to do so at State fair hearing]).

Respondents make various arguments in support of their denial of retroactive SSP benefits, none of which carry the day.

The premise of respondents' decision not to issue retroactive payments is that Torres was seeking to fix an underpayment, and therefore it must apply 18 NYCRR 398-11.3, which states that ""no payment will be made to an individual . . . who is ineligible to receive SSP . . ." (id.). But by its terms that regulation applies when "payment issued is less than the correct amount of SSP . . . benefits," and thus the Agency must "correct the underpayment." That is not what occurred here. Torres was never "issued" any payment, much less a sum "less than the correct amount." Rather, she sought a determination of her eligibility for benefits in the first instance. Her application did not entail any adjustment to an amount already paid or awarded, but rather retroactive payment of benefits, defined specifically by regulation as "payments issued after the calendar month during which the . . . SSP recipient was eligible for such benefits" (18 NYCRR 398-2.1[ab]). Once it becomes clear that the regulation addresses a different circumstance, then respondents' construction evaporates.

The Agency's reading, moreover, is impossible to square with other aspects of the governing regulations, which define eligibility as vesting at the time of the application, not the time of decision or payment. Thus, an individual applying for SSI benefits is "deemed to have concurrently filed for SSP benefits" (18 NYCRR 398-4.1[a]) and eligibility for such benefits "begins on the SSI application effective date" (18 NYCRR 398-4.1[c]). That date is defined by regulation as "the first day of the month following the later of the date the SSI application is filed; or the individual becomes eligible for such benefits" (18 NYCRR 398-2.1[al]). Benefits are then "payable as of the month that SSI payments begin" (18 NYCRR 398-4.1[d]). In short, the regulations provide dates for both eligibility and payment that are tied to the time of the application, not to the date of the Agency's subsequent decision.

Reading the regulation as respondents have done would divest the word "eligible" of any meaning. Under their construction, at the very moment eligibility for SSP is established, it also disappears. Such a reading, that is not supported by the regulatory language and which precludes an individual from receiving benefits during a period for which the same regulations define her as "eligible," because of the date on which that eligibility was determined, is arbitrary and irrational (see Seittelman v Sabol, 91 NY2d 618, 627 [1998] [citation omitted] [striking down regulation because it "arbitrarily penalizes eligible claimants"]).

More to the point, the Agency's reading in this case is in direct contradiction to the binding ruling of the Commissioner's designee following fair hearing.

OTDA seeks to rebut this conclusion with various policy arguments. It contends that it lacks the global ability to assess the retroactive eligibility of applicants for SSP, and that any requirement that it do so would entail significant expense (see Sheehan Aff ¶ 17). But that is not an issue in this case, since the Designee made findings of fact regarding Torres' eligibility. Respondents do not challenge the accuracy of those findings, and acknowledge that at a fair hearing the technical issues regarding a determination of eligibility at the time of application no longer apply (see Tr 18 ["Once the person identifies themselves, the agency does have the capability to make the determination of retroactive eligibility"]; Tr 15 ["It's not that it's a complicated determination when they're sitting here right now with individuals who are bringing lawsuits [but it's] a complicated determination with respect to all the individuals who are out there that may have prevailed in Fair Hearings that we don't know about"]). Thus, OTDA's argument boils down to the claim that while Torres may personally be eligible for SSP benefits, she should not receive them because in other circumstances, the agency lacks the ability to determine such eligibility administratively. I cannot see how such broader technical or cost issues should limit petitioner's entitlement to benefits for which her eligibility has been established.

Along the same lines, respondents argue that its refusal to pay retroactive benefits is consistent with OTDA regulations, which provide that the Office is "bound by the decision and action taken by SSA on the SSI eligibility determination" (18 NYCRR 398-4.3). But the same regulation makes clear that the Agency is not restricted to the information it receives from SSA; rather, it states that eligibility for SSP should be determined not only on the information obtained from the Data Exchange, but also on information provided by the applicant and "other information available to the Office."

OTDA also argues that the decision not to pay retroactive benefits is a "policy determination" based on what it deems to be the optimal allocation of resources (Tr 16-17). As noted, it also says that retroactive payments will be of little benefit, since they will often be taken to recompense local social service districts for money they have laid out for applicants. Be that as it may, the appropriate route to address any such concerns is to amend the regulations — to the extent that such amendment is permissible by law — so that such regulations are no longer interpreted by the Commissioner's designees in the manner that they repeatedly have been, and which interpretation appears entirely correct for reasons stated above. OTDA cannot, instead, simply ignore decisions rendered after fair hearing, or toss aside the language of its own regulations to serve particular policy goals when it sees fit to do so.

Finally, there is the question of remedy: OTDA contends that mandamus is not an appropriate remedy in this case, since the regulation is at best unclear, and thus it is within the agency's discretion to set policy on the payment of SSP (Tr 47-48). It therefore argues that if the petition is granted, remand for further consideration would be the appropriate outcome, and not a directive to issue benefits (id.).

An Article 78 petition may be brought to seek the remedy of mandamus, that is, to compel an agency "to perform a duty enjoined upon it by law" (CPLR 7803[1]). Mandamus, however, "applies only to acts that are ministerial in nature and not those that involve the exercise of discretion" (Matter of Maron v Silver, 14 NY2d 230, 249 [2010]). Thus, to be entitled to mandamus, petitioner must show "a clear legal right to the relief demanded" and "a corresponding nondiscretionary duty on the part of the agency to grant that relief" (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991]).

In this case, the relief sought by petitioner involves the performance of a ministerial duty: to pay the specific amount owed in retroactive SSP benefits, as directed by the Commissioner's designee following fair hearing. The hearing officer left no discretion, and by my reading above, neither do the regulations. Mandamus is therefore appropriate to compel payment of $115 in retroactive benefits, in compliance with the Designee's order (see Stutzman v Fahey, 62 AD2d 1070, 1071 [3d Dept 1978] [appropriate relief in Article 78 proceeding was to direct payment of benefits owed]).

II. Declaratory Judgment

Petitioner also asks the Court to enter a declaratory judgment declaring that Sheehan's failure to comply with the fair hearing directive lacked a rational basis and was contrary to law and regulations, and that the "regulations governing SSP benefits mandate that an individual who was eligible for benefits when he or she received retroactive SSI benefits is eligible to receive retroactive SSP benefits" (Pet at 7).

A trial court may decline to issue a declaratory judgment when "other adequate remedies are available, such as a CPLR article 78 proceeding to challenge an administrative determination" Gable Transport, Inc. v State, 29 AD3d 1125, [3d Dep't 2006] [citations omitted]). Thus, proceeding on an Article 78 may make the declaratory relief "duplicative and unnecessary" (Yarde v Roberts, 60 Misc 3d 686, 695 [Sup Ct, Albany Cty 2017]). Here, the only thing at stake for this petitioner is the retroactive payments of benefits; there is no dispute regarding the payment of benefits going forward. Given the relief granted above, which addresses the only live dispute between Torres and OTDA, there is no need for further declaratory relief (see id. [denying declaratory judgment as unnecessary after granting petition annulling denial of certain OTDA benefits]).

III. Attorneys' Fees, Costs and Disbursements

Under CPLR 8601, the Court may award fees in an action against the State, unless the State respondent can show that its position was "substantially justified." To meet this standard, the Agency's arguments must have been "justified to a degree that could satisfy a reasonable person [or having a] reasonable basis both in law and in fact" (Scibilia v Regan, 199 AD2d 736, 737 [3d Dept 1993] [citation and internal quotation marks omitted]). An agency's position may meet this standard even if it is ultimately determined to be incorrect (id.). The government has the burden of showing substantial justification, and it must make a "strong showing" justifying its position (Barnett v New York State Dept. of Social Services, 212 AD2d 696, 697-698 [2d Dept 1995]). Moreover, any unreasonable position adopted by the State in its litigation "automatically opens the door" to a fee award (New York State Clinical Laboratory Ass'n, Inc. v. Kaladjian, 85 NY2d 346, 357 [1995]).

Respondents did not meet that standard here. Given the clear determination of the Designee that benefits should be provided Torres if she is eligible "for the period of June 2015 to October 2015," and the unequivocal statements in the decision that OTDA's contrary position was wrong, respondents had no basis — and have not articulated one here — for adhering to their bar on retroactive benefits. The Agency's failure to comply with the clear directives of the decision after fair hearing thus was not substantially justified (see Tormos v Hammons, [1st Dept 1999] [State liable for attorneys' fees under CPLR 8601 when it failed to secure locality's compliance with order to pay benefits]).

Petitioner is therefore entitled to fees. I further award costs and disbursements to petitioner under Articles 81 and 83, which it is entitled as the prevailing party (see CPLR 8101).

* * *

In sum, for the reasons set forth above, it is ORDERED that the petition is GRANTED, and the matter is remanded to the Agency for respondents to provide SSP benefits to petitioner for the months between June and October 2015 solely based on her eligibility at that time and without regard to whether or not she is presently eligible for benefits within 30 days of service upon it of this Decision & Order; and it is further

ORDERED that Petitioner is awarded costs, disbursements and attorneys' fees, and within 30 days of this Decision, Order & Judgment counsel shall present the Court with its fee application, including an appropriate accounting of time spent, what it believes to be proper billing rates for comparable work, and a bill of costs; and it is further

ORDERED that Respondents may, if they wish, submit any objections to the amount of fees, costs and disbursements sought within 20 days thereafter; and it is further

ORDERED that the parties shall submit an appropriate stipulation within ten days of the date of this Decision, Order & Judgment amending the caption so as to substitute in the proper defendant for former Commissioner Roberts.

This constitutes the Decision, Order & Judgment of the Court. The original judgment is returned to the petitioner's attorney for filing and service. A copy of the judgment and the supporting papers have been delivered to the County Clerk for placement in the file. The signing of this judgment, and delivery of a copy of the judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.

Dated: April 23, 2019 Albany, New York David A. Weinstein Acting Supreme Court Justice Papers Considered: 1. Petitioner's Memorandum of Law, dated August 23, 2018, with Exhibits A through F annexed thereto; 2. Petitioner's Notice and Verified Petition, dated September 19, 2018, with Exhibits A through K annexed thereto; 3. Respondent's Answer, dated October 18, 2018; 4. Affidavit of Denis Sheehan, dated October 18, 2018, with Exhibits A through C annexed thereto; 5. Respondent's Memorandum of Law in Opposition to Petition, dated October 19, 2018; and 6. Respondent's submission to the Court, dated November 15, 2018 containing the transcript of the Fair Hearing conducted on January 18, 2018.