In 1969, the State Commissioner of Social Services added subdivision (c) of section 372.2 of title 18 of the Official Compilation of Codes, Rules and Regulations of the State of New York to the regulations already promulgated to implement the State program. It unconditionally provided that: "(c) Emergency assistance shall not be provided when destitution is due to loss, theft, or diversion of a grant already made." The intent of the commissioner in adopting the regulation was undoubtedly to prevent future court decisions such as Matter of Preston v Barbaro ( 61 Misc.2d 327, affd 34 A.D.2d 809) and Matter of Ross v Barbaro ( 61 Misc.2d 147), which had authorized emergency relief where the claimed destitution was occasioned by the theft of the proceeds of grants already made. Whatever benefits the commissioner may have sought to effect by the adoption of said regulation, whether to reduce or eliminate fraudulent claims that could easily be alleged and rarely disproven or otherwise, the summary denial of assistance without regard to the honesty of the loss or the actual destitute circumstances of the people intended to be protected by the act, was both arbitrary and capricious. Significantly, the regulation adds a requirement that does not exist either under State or Federal law. Administrative agencies can only promulgate rules to further the implementation of the law as it exists; they have no authority to create a rule out of harmony with the statute (Manhattan Co. v Commissioner, 297 U.S. 129; Miller v United States, 294 U.S. 435; Matter of Gold [Cors
-j) if there has been a bad faith diversion of a grant already given. Although the bad faith diversion basis contained in regulation 18 NYCRR 372.2 (c) is valid, the Department of Social Services made no investigation to determine the reasonableness of petitioner's diversion of her fuel allowance before refusing to grant petitioner relief. Further, no procedure has been established by which a destitute petitioner will be granted an immediate and preferred hearing to determine entitlement to emergency need payment under section 350-j and to prevent the grave harm which could occur through failure to give immediate response to an emergency situation (see Young v. Shuart 39 A.D.2d 724). It was, therefore, proper for petitioner to seek immediate judicial review of the department's denial and it was error for Special Term to dismiss the petition herein for failure to exhaust administrative remedies ( Summers v. Wyman, 64 Misc.2d 67, supra; Matter of Preston v. Barbaro, 34 A.D.2d 809, affg. 61 Misc.2d 327; Matter of Borders v. Nassau County Dept. of Social Servs., 34 A.D.2d 805). The proper procedure should have been to order an immediate court hearing to determine if a bad faith diversion of funds had occurred (see Matter of Preston v. Barbaro, 61 Misc.2d 327, affd. 34 A.D.2d 809, supra). We are, therefore, remitting this case to Special Term for a hearing. If the court determines that there was no bad faith diversion of funds by petitioner, the emergency grant should be ordered. If, on the other hand, the court finds that petitioner acted in bad faith, the matter should be returned to the Department of Social Services for appropriate disposition.
Respondent offers nothing to contravene these allegations except a conclusory statement in his brief. Goldberg v. Kelly ( 397 U.S. 254, 264); Kaplan v. Nassau County Dept. of Social Serv. ( 34 A.D.2d 575); Matter of Borders v. Nassau County Dept. of Social Serv. ( 34 A.D.2d 805) ; Summers v. Wyman ( 64 Misc.2d 67, affd. 36 A.D.2d 795, supra); Matter of Preston v. Barbaro ( 61 Misc.2d 327, affd. 34 A.D.2d 809); Matter of Ross v. Barbaro ( 61 Misc.2d 147); Matter of Wildstein v. Barbaro ( 61 Misc.2d 31) all are authority for the proposition that under the circumstances of this case petitioner was not bound to exhaust her administrative remedies by seeking a fair hearing. Matter of Yakkey v. Shuart ( 65 Misc.2d 859), cited by respondent, while expressing some doubt concerning the scope of the Borders holding, is not to the contrary for the ultimate determination made in the Yakkey case (p. 865) was that "respondent shall make immediate duplicate payment of the unpaid rental * * * so as to prevent the eviction of petitioner".
In light of these factors we do not feel it proper to rely heavily on the administrative interpretation of Section 406(e). See also Application of Bryant v. Lavine, 79 Misc.2d 425, 359 N.Y.S.2d 492 (Sup.Ct. 1974); Application of Preston v. Barbaro, 61 Misc.2d 327, 305 N.Y.S.2d 627 (Sup.Ct. 1969). The Government notes that the Carleson, Townsend, Burns and King cases, supra, relied on 42 U.S.C. § 602(a)(10) which provides that "aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals."
Nor are there any restrictions therein contained which, in any way, limit or inhibit such relief, as respondents now argue. In fact, our courts have been quick to reject any attempt by State and local agencies to further qualify or limit offerings of "emergency assistance" by adopting regulations which would impose new or additional requirements and qualifications (see Matter of Bates v. Wyman, 36 A.D.2d 854; Matter of Nazario v. New York City Comr. of Social Serv., 37 A.D.2d 630; Matter of Knudsen v. Nassau County Dept. of Social Servs., 77 Misc.2d 402; Matter of Preston v. Barbaro, 61 Misc.2d 327) and have specifically ruled invalid the instant regulation advanced by respondents conditioning "emergency assistance" on a showing that destitution did not arise from "loss, theft or diversion of a grant already made" ( 18 NYCRR 372.2 [c]). (See Baumes v. Lavine, 74 Misc.2d 1046; Young v. Shuart, 67 Misc.2d 689, affd. 39 A.D.2d 724; and Matter of Lawson v. Shuart, 67 Misc.2d 98.)
(See 18 N.Y.CRR Part 372.) This fundamental legal interpretation has been repeatedly made in proceedings involving this same department (e.g. Young v. Shuart, 67 Misc.2d 689, affd. 39 A.D.2d 724; Matter of Lawson v. Shuart, 67 Misc.2d 98, 100; Matter of Preston v. Barbaro, 61 Misc.2d 327; Matter ofWoods v. Lavine, 76 Misc.2d 677), and other social services agencies throughout the State (e.g. Matter of Nazario v. New York City Comr. of Social Services, 37 A.D.2d 630; Matter of Bates v. Wyman, 36 A.D.2d 854; Matter of Hatfield v. Lavine, 42 A.D.2d 855; Matter of Thomas v. Sipprell, 69 Misc.2d 87; Baumes v. Lavine, 74 Misc.2d 1046; Nichols v. Lavine, 75 Misc.2d 77, affd. 43 A.D.2d 664; Matter of Lorenzo v. Sipprell, 68 Misc.2d 387; Matter of Ross v. Sipprell, 71 Misc.2d 677; Nicholson v. Schreck, 75 Misc.2d 676; Matter of Jones v. Berman, 75 Misc.2d 659; Watts v. Lavine, 75 Misc.2d 80). No reported decisions have held to the contrary.
Under section 62 Soc. Serv. of the Social Services Law, the County Commissioner of Social Services has the primary responsibility for providing assistance to social service clients within the County of Albany. Accordingly, the primary obligation to furnish public assistance lies upon the Albany County Department of Social Services. ( Matter of Ross v. Barbaro, 61 Misc.2d 147; Matter of Preston v. Barbaro, 61 Misc.2d 327.) The provisions for emergency assistance under the circumstances of this case are contained in 18 NYCRR 352.2 (c) which provides: "A special allowance and grant may be made to duplicate a grant already made because the cash has been lost or stolen".
Here, as in the Ross case, the Commissioner's refusal to issue the duplicate grant centers upon subdivision 8 of section 153 Soc. Serv. of the Social Services Law, providing that State reimbursement shall not be made for the duplication of any grant or allowance. The Commissioner argues that the county has no obligation to make a duplicate payment in the absence of reimbursement from the State. That argument has already been rejected in Ross and in Matter of Preston v. Barbaro ( 61 Misc.2d 327, affd. 34 A.D.2d 809) and is rejected here. Respondent has a duty under State law to provide assistance to destitute persons, and should not be permitted to avoid that responsibility by adoption of local policies which limit the availability of public assistance to those instances where a higher level of government shares the cost. Even assuming arguendo that respondent would have the power to adopt such a policy, there has been no showing here that the governing body of the County of Nassau has determined that it will not adopt a procedure for duplication of grants.
Under the circumstances, the court cannot hold that the failure of the respondent to provide assistance without any personal appeal by the petitioner and without any opportunity to investigate the matter was arbitrary. Reliance by the petitioner upon the legal authorities cited in the petition ( Matter of Ross v. Barbaro, 61 Misc.2d 147; Matter of Preston v. Barbaro, 61 Misc.2d 327, affd. 34 A.D.2d 809; Matter of Borders v. Nassau County Dept. of Social Services, 34 A.D.2d 805) is misplaced. In Ross ( supra) the petitioner "was candidly robbed" about July 31, 1969.