
    In the Matter of Nathan Atkinson, Petitioner, v Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents.
   Proceeding pursuant to CPLR article 78 to review two determinations of the State Commissioner of Social Services, dated January 26, 1979 and May 3, 1979, respectively, which affirmed determinations of the local agency disqualifying petitioner from receiving public assistance in the category of home relief for periods of 30 and 60 days, respectively. Petition granted, determinations annulled, on the law, without costs or disbursements, and respondents are directed to reimburse petitioner for those periods of time during which he was improperly disqualified from receiving home relief. We find, on this record, that the State commissioner’s determinations are not supported by substantial evidence. The predicate for such a disqualification is a finding that an employable home relief recipient has refused and failed to report to proffered employment, and/or that the recipient has refused a concrete referral to available employment. In this matter, petitioner reported to a job interview on one occasion and to a referral to a job interview on a second occasion. In each instance, petitioner reacted negatively to the prospective employment, and expressed his belief that he would be unable to perform the required duties. However, petitioner neither refused an offer of employment, nor repudiated a referral to employment. Rather, the offer and referral were never made. We cannot agree with the State commissioner’s implicit assumption that an expressed negative attitude is tantamount to an outright refusal of available employment within the meaning of subdivision 5 of section 131 of the Social Services Law and 18 NYCRR 385.1 and petitioner is therefore entitled to continue receiving public assistance and to reimbursement for the periods involved. Hopkins, J. P., Mangano, O’Connor and Weinstein, JJ., concur.  