Opinion
May 15, 1995
Appeal from the Supreme Court, Westchester County (Cowhey, J.).
Ordered that the order and judgment is modified by adding thereto a provision declaring that the shelter allowance did not violate the plaintiffs' rights; as so modified, the order and judgment is affirmed, without costs or disbursements.
We agree with the Supreme Court's determination that the plaintiffs' challenge to the New York State Constitution and the Social Services Law failed to state a cause of action for which relief could be granted. "Although a duty of assistance to the needy is recognized by New York State's Constitution (Jiggetts v Grinker [ 75 N.Y.2d 411], 416; Tucker v Toia, 43 N.Y.2d 1, 7), there is no provision in the State Constitution or Social Services Law requiring that current shelter allowances be set at a particular level for recipients of home relief" (Matter of Gautam v Perales, 179 A.D.2d 509, 511).
We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the defendants rather than the dismissal of the complaint (see, Lanza v Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901). Balletta, J.P., Copertino, Altman and Goldstein, JJ., concur.