Samuels v. Berger , 55 A.D.2d 913 ( 1977 )

In a proceeding pursuant to CPLR article 78 to compel the Commissioners of the Departments of Social Services of the State of New York and of the County of Suffolk to provide petitioner with a "full public assistance grant”, in the category of aid to dependent children, for a family household consisting of five persons, the county commissioner appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County, dated June 9, 1976, as granted the petition. (A cross appeal by petitioner from a stated portion of the said judgment has been withdrawn.) Judgment affirmed insofar as appealed from, without costs or disbursements. Special Term properly ordered appellant Kirby, as Commissioner of the Department of Social Services for the County of Suffolk, to comply with the direction of the State commissioner, which was made after a statutory fair hearing, that the local agency not delete petitioner’s three eldest children from her budget. Appellant is, in the statutory scheme, but a mere agent of the State Department of Social Services (see Social Services Law, § 65, subd 3), and he is bound by the unambiguous fair hearing decision of the State commissioner in petitioner’s case (see Social Services Law, § 353, subd 2; 18 NYCRR 358.18, 358.22). A local commissioner may not substitute his interpretation of the regulations of the State Department of Social Services for that of the State department itself, and it matters not that the instant challenge is raised by way of a defense to petitioner’s proceeding to compel compliance rather than by a separate CPLR article 78 proceeding brought by the local commissioner to review the State commissioner’s determination (see, e.g., Matter of Barbaro v Wyman, 32 AD2d 647). Latham, Acting P. J., Damiani, Hawkins and O’Connor, JJ., concur.