
    In the Matter of Brenda Nasser et al., Individually and on Behalf of Their Minor Children, Petitioners, v. Abe Lavine, Individually and as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Supreme Court, Westchester County,
    September 7, 1973.
    
      Gene F. Reibman for petitioners. Louis J. Lefkowitz, Attorney-General, for Abe Lavine, respondent. Harry Lott, County Attorney (F. Sherwood Alexander, Sr., of counsel), for Leonard Berman, respondent.
   Joseph F. Gagliardi, J.

In this severed article 78 proceeding (see prior decision dated July 24, 1973) petitioners raise the issue that the recoupment provisions of the New York State Official Compilation of Codes, Bules and Begulations (18 NYCRR 352.7 [g] [5]) are unconstitutional because it violates Federal regulations (Code of Fed. Beg., tit. 45, § 233.20, subd. [a], par. [3], cl. [ii], subcl. [<?]). The parties cite cases from other jurisdictions which have considered the question with diverse results. It would not be useful to discuss these cases since the Federal regulation in point has been amended to become effective October 15, 1973 (38 Federal Begister 22010). The amended regulation provides for recoupment of overpayments from current assistance (Code of Fed. Reg., tit. 45, § 233.20, subd. [a], par. [12], cl. [i], subcl. [€]) as occurred here and it is clear that Federal policy permitted such action prior to the amendment (38 Federal Begister 22007). However, the amendment provides that where recoupments are made from current assistance payments the State must establish reasonable limits on the proportion of such recoupment to avoid undue hardship (Code of Fed. Reg., tit. 45, § 233.20, subd. [a], par. [12], cl. [i], .subcl. [D]). Neither respondents nor the Hearing Officer took into account any change in the child’s needs during the recoupment period (74 Misc 2d 590, 598). Accordingly, the petition is granted to the extent that the determination of respondents is annulled and the matter remitted for a hearing to determine whether the amount recouped was proper in light of the child’s needs.  