Wishik v. Dumpson

caused in the processing of the claims of these petitioners must be tempered by the fact that the problem of the scope of allowable discovery, recurrent in nature, may now be laid to rest. Concur—Stevens, P. J., Markewich and Lane, JJ.; Kupferman and Silverman, JJ., dissent in separate memoranda, as follows: Kupferman, J. (dissenting). I would affirm as to the limited relief granted. While there is wisdom in both the majority opinion and in the dissent of my colleague, Silverman, J., I take a different view. The appeal is premature. The petitioners seek to establish an absolute right for all welfare recipients to have access to their files. We do not have to reach that question. It may very well be that on his in camera examination the hearing officer will determine that this file should be made available to petitioners in this case, in which event this appeal as to this case would serve no purpose and would then certainly justify the dissent by Silverman, J., concerning unnecessary intermediate appeals. If the hearing officer denies examination, it will be based on his finding that the file reveals nothing that would help petitioners in their attempt to prove notice. (See Rivera v Dumpson, 54 AD2d 646 .) We then would face the question of an absolute right. Further, the file may well contain confidential items not relevant in this overpayment dispute. (Cf. People v Prim, 40 NY2d 946 ; CPLR 4508.) There should be guidelines as to relevancy and confidentiality. (Cf. People v Darden, 34 NY2d 177 , 181; People v Huggins, 36 NY2d 827 , 828.) Silverman, J. (dissenting). In this dispute relating to the right of the welfare authorities to recoup alleged overpayments, a statutory "fair hearing” was begun on March 24, 1975 before a hearing officer of the State Department of Social Services. Petitioners, the welfare recipients, wish to examine their case file freely in preparation for their defense. The welfare agency’s representative refused to permit examination. Thereupon, at the request of petitioners, the hearing officer directed an adjournment of the hearing to permit the commencement of this proceeding to compel access to the case file. Petitioners then brought this article 78 proceeding. Special Term granted petitioners limited relief. Petitioners contend that they are entitled to broader relief and therefore appeal. In my view, no article 78 proceeding lies, for the reason that the refusal to furnish the file (if we assume that the hearing officer concurred in that) was not a final determination but merely a procedural step in administrative proceedings. "The procedure of article 78 is not available where there has been no final determination of the rights of the parties with respect to the matter to be reviewed.” (Mayor of Carville v Allen, 13 AD2d 866 , 867.) The determination of the administrative agency fell within the category of "merely intermediate procedural rulings incidental to the administrative process which are reviewable only in the event that appellant conceives himself aggrieved by the ultimate consequence of the [case].” (Carville, supra, p 867 ; accord Matter of Art Metal Constr. Co. v McGoldrick, 260 App Div 153 , 154; Matter of Taibbi v State Liq. Auth., 48 AD2d 568 , 571.) The extremely liberal system of interlocutory appeals from court orders which we have in this State has been the subject of considerable discussion and controversy. (See, e.g., Mattison, Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR 5701, p 553.) We should not import into administrative proceedings a system of interlocutory appeals to the courts. The delays incident to such a system are strikingly illustrated in this case. On March 24, 1975, the "fair hearing” began (although apparently no evidence was taken). Because of this dispute as to what is essentially a question of discovery, the administrative proceeding has been brought to a halt for 20 months, and the matter

can yet go to the Court of Appeals. And after that, it can go back for the statutory "fair hearing,” with perhaps another dispute about some other discovery point and the whole weary appellate process all over again. But for this article 78 proceeding, the whole case could have been heard long ago, with perhaps a determination favorable to petitioners and no article 78 proceeding, or an article 78 proceeding after an adjudication on the merits. And one way or another, it might well develop that the discovery controversy did not affect the final result. The statutory scheme clearly contemplates that there be no interlocutory appeals to the courts in administrative proceedings. We should not dilute that bar or furnish a precedent for further article 78 proceedings to test discovery questions in administrative proceedings. It follows that in my view this article 78 proceeding should have been dismissed at Special Term. Special Term did not do so but instead granted some relief to petitioners. However, respondent below has not appealed to this court. Therefore, I suppose we do not have power to dismiss the proceeding. Petitioners have appealed, asking for more relief. Obviously, in my view they are not entitled to more relief in this proceeding. Accordingly, I think the order appealed from should be affirmed without passing on the merits of the right to discovery.