
    In the Matter of Edward Arnold, Appellant, v James Reed, as Director of the Monroe County Department of Social Services, et al., Respondents.
    Argued November 9, 1977;
    decided December 21, 1977
    
      APPEARANCES OF COUNSEL
    
      Ian C. De Waal for appellant.
    
      Charles G. Porreca and Charles G. Finch for James Reed, respondent.
    
      Louis J. Lefkowitz, Attorney-General (Maurice K. Peaslee and Jean M. Coon of counsel), for Stephen Berger, Acting State Commissioner of Social Services, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the petition granted.

In view of our holding in Matter of Lee v Smith (43 NY2d 453; decided herewith) that subdivision (a) of section 158 of the Social Services Law is unconstitutional insofar as it bars SSI recipients from obtaining home relief (see L 1974, ch 1080, § 2), it is unnecessary to consider whether the commissioner acted properly in determining that the petitioner was an SSI recipient within the meaning of subdivision (a) of section 158, as amended, because of his status as an "essential person” under the SSI program.

Jones, J. (dissenting).

For the reasons stated in the memorandum opinion at the Appellate Division in this case and in my dissent in Matter of Lee v Smith (43 NY2d 453; decided herewith), I would affirm the order of the Appellate Division. That the commissioner appears prospectively to have modified his interpretation does not serve to vitiate his former determination which was in effect during the very brief period involved in this case.

Judges Gabrielli, Wachtler, Fuchsberg and Cooke concur; Judge Jones dissents and votes to affirm in a memorandum in which Chief Judge Breitel and Judge Jasen concur.

Order reversed, with costs, and the petition granted in a memorandum.  