
    In the Matter of Elizabeth Gilbert et al., Respondents, v Barbara Blum, as Commissioner of the New York State Department of Social Services, Appellant, and James E. Kirby, as Commissioner of the Suffolk County Department of Social Services, Respondent.
   In a proceeding pursuant to CPLR article 78 to review a determination of the State commissioner dated November 14, 1979, which held that the determination of the local agency denying medical assistance to petitioner Elizabeth Gilbert was not subject to review, the State commissioner appeals from a judgment of the Supreme Court, Suffolk County (Canudo, J.), entered December 10, 1980, which annulled the determinations, granted medical assistance to Elizabeth Gilbert, now deceased, to be paid to her surviving spouse and awarded attorney’s fees in the sum of $4,675. Judgment modified, on the law, by deleting therefrom the fifth decretal paragraph which directed the payment of attorney’s fees by the State commissioner. As so modified, judgment affirmed, without costs or disbursements. In view of the fact that petitioners’ attorney admitted that she was not charging a fee, we exercise our discretion to deny the request for attorney’s fees in this proceeding (see Matter of Bess v Toia, 66 AD2d 844; Matter of Brennin v Kirby, 79 AD2d 396; Matter of Shields v Blum, 80 AD2d 668). We have considered appellant’s other contentions and find them to be without merit. Margett, J.P., O’Connor, Weinstein and Bracken, JJ., concur.  