Opinion
December 8, 1975
Proceeding pursuant to CPLR article 78 to review a determination of respondent Commissioner of the Department of Social Services of the State of New York, dated March 14, 1973 and made after a statutory fair hearing, which affirmed a determination of respondent Commissioner of the Westchester County Department of Social Services to reduce the public assistance grant to petitioner in the aid to families with dependent children category, the reduction being in order to recover assistance wrongfully received by her. Petition granted, on the law, to the extent of adding to the respondent State commissioner's determination, immediately after the provision that the agency's determination is "affirmed", the following: "except that it is reversed as to the amount to be deducted from each monthly check." Determination otherwise confirmed, without costs, and matter remanded to respondents for further proceedings not inconsistent with the views herein set forth. The county commissioner, in reliance upon the then existing regulation, ordered a pro rata reduction of assistance after a finding that petitioner had retained duplicate checks with knowledge that she was not entitled to them. The regulation was subsequently amended to require that deductions be made on a case-by-case basis, so as not to cause undue hardship, but in no case to exceed 10% of the household needs ( 18 NYCRR 352.31 [d] [4]). The amendment removed previously recognized infirmities in the former regulation and, consequently, respondents should be given the opportunity to recalculate the deduction (Matter of Halley v Lavine, 47 A.D.2d 945). We have considered petitioner's other contentions and find them to be without merit. Rabin, Acting P.J., Latham, Cohalan, Margett and Brennan, JJ., concur.