Opinion
November 13, 1981
Appeal from the Monroe Supreme Court, Wagner, J.
Present — Simons, J.P., Hancock, Jr., Callahan, Doerr and Denman, JJ.
Judgment unanimously reversed, with costs, and petition granted. Memorandum: Petitioner De Jonge appeals from a judgment of Supreme Court, Monroe County, which affirmed respondent Blum's fair hearing decision which affirmed the determination of respondent Richardson and Paul E. Dickson, Commissioner of the Yates County Department of Social Services, to prorate the monthly assistance grant for petitioner's unborn child pursuant to Social Services regulations ( 18 NYCRR 352.30 [b]). Petitioner lived with and was supported by her parents at the time she applied for an AFDC grant for herself and her unborn child. She was denied benefits for herself. In determining the amount which petitioner was to receive on behalf of her unborn child, the agency, pursuant to regulation 18 NYCRR 352.30 (b), calculated the needs for the unborn child at one half of the basic allowance for a household of two, instead of a full allowance for a household of one. It has consistently been held that the proration of a home relief grant conflicts with the intentions of the Social Services Law (Matter of Frost v. Blum, 50 N.Y.2d 978; Matter of Gabel v. Toia, 64 A.D.2d 267; Matter of Snowberger v Toia, 60 A.D.2d 783). The courts and the commissioners' own regulations recognize that an unborn child has needs separate from its mother and must be treated as a born child for AFDC benefits (Matter of Catoe v Lavine, 51 A.D.2d 545, 546; Matter of Boines v. Lavine, 44 A.D.2d 765, mot for lv to app den 34 N.Y.2d 519; 18 NYCRR 369.2 [a] [1] [i]). The pro rata approach adopted by the respondents is improper. The commissioner may only promulgate rules to implement the law. There is "no authority to create a rule out of harmony with the statute" (Matter of Jones v. Berman, 37 N.Y.2d 42, 53; Matter of Harbolic v. Berger, 43 N.Y.2d 102, 109). In our view the proration of the home relief grant conflicts with the intentions of the Social Services Law (Matter of Gabel v. Toia, supra) and, therefore, the regulation permitting proration of AFDC grants to unborn children ( 18 NYCRR 352.30 [b]) is in violation of section 131-a Soc. Serv. of the Social Services Law (Matter of Jackson v. Blum, 79 A.D.2d 1076; Matter of Hinson v. Blum, 94 Misc.2d 601, affd 72 A.D.2d 794).