Opinion
Argued May 30, 1979
Decided July 3, 1979
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, SIDNEY LEVISS, J.
E. Anne Hayes and John C. Gray, Jr., for appellant.
Robert Abrams, Attorney-General (Gerald Slotnik and Herbert J. Wallenstein of counsel), for Philip L. Toia, as Commissioner of the State Department of Social Services, respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and supplementary grant of public assistance in the category of aid to dependent children to petitioner should be reinstated.
The Commissioner of the State Department of Social Services erred in prorating household expenses between petitioner and her nine-year-old child, a recipient of Social Security survivors' benefits. A child's Social Security benefits may not be deemed available income for the purpose of determining eligibility for aid to dependent children when such benefits are sufficient to satisfy the needs of the child and the representative payee does not choose to include the child within the AFDC assistance unit. (See Johnson v Harder, 383 F. Supp. 174, affd 512 F.2d 1188, cert den 423 U.S. 876; Howard v Madigan, 363 F. Supp. 351; Matter of Nelson v Toia, 92 Misc.2d 575, affd 60 A.D.2d 796, mot for lv to app den 44 N.Y.2d 646; Matter of Snowberger v Toia, 60 A.D.2d 783, affd 46 N.Y.2d 803.)
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order reversed, etc.