Opinion
October 15, 1979
Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Social Services, dated October 16, 1978, which, after a statutory fair hearing, affirmed a determination of the local agency to reduce petitioner's grant of aid to dependent children, in order to recoup overpayments caused by her willful failure to report other income received by her from her boyfriend from August, 1977 to January, 1978. Petition granted to the extent that the determination of the State commissioner is modified, on the law, by adding thereto, immediately after the provision that the determination of the local agency is affirmed, a provision that any reduction in benefits will require a prior finding that petitioner's minor children do not require the assistance which they are now receiving. As so modified, determination confirmed, without costs or disbursements, and matter remitted to the State commissioner for further proceedings not inconsistent herewith. Although the petitioner has admitted that she willfully withheld information regarding income and resources provided by her boyfriend, her misconduct may not serve to deprive her minor children of the assistance which they are entitled to receive in the absence of a showing of a present decrease in the children's needs or an excess of funds available for their benefit and use (see Matter of Farrone v Toia, 61 A.D.2d 983; Matter of Palermo v Toia, 56 A.D.2d 889; Matter of Westby v Berger, 54 A.D.2d 911). Damiani, J.P., O'Connor, Lazer and Margett, JJ., concur.