Opinion
March 31, 1980
Proceeding pursuant to CPLR article 78 to review so much of a determination of the respondent State Commissioner of Social Services, dated February 28, 1978 and made after a statutory fair hearing, as affirmed a determination of the local agency to discontinue from petitioner's grant of aid to dependent children the monthly shelter allowance because of petitioner's failure to apply such payments to the mortgage payments due for December, 1977 and January and February, 1978. Petition granted to the extent that the determination of the respondent State commissioner is modified, on the law, by adding thereto a provision that any reduction in benefits will require a finding that petitioner's minor children do not require the assistance to which they are entitled. Determination otherwise confirmed insofar as reviewed, without costs or disbursements, and matter remanded to the respondent State commissioner for further proceedings not inconsistent herewith. While the finding that petitioner failed to apply the shelter allowances to meeting the mortgage payments for the months in question was supported by substantial evidence, nevertheless petitioner's minor children may not be deprived of the assistance which, absent a finding of lack of need, they are entitled to receive (see Matter of Westby v. Berger, 54 A.D.2d 911, and cases there cited). Gibbons, J.P., Rabin, Cohalan and Margett, JJ., concur.