
    In the Matter of Christine Hylton, Respondent, v Paul V. Nyden, as Acting Commissioner of the Westchester County Department of Social Services, Appellant.
    Argued February 17, 1976;
    decided March 23, 1976
    
      Gerald Harris, County Attorney (Steven R. Kartagener of counsel), for appellant.
    I. The court below erroneously reversed the court below and granted respondent’s petition without first considering the apparent factual finding at Special Term that respondent had inexcusably failed to exhaust her administrative remedies, which finding if left undisturbed would jurisdictionally bar respondent from obtaining judicial relief. (Matter of Hylton v Nyden, 48 AD2d 913; Young Men’s Christian Assn, v Rochester Pure Waters Dist, 37 NY2d 371; Lyons & Co. v Corsi, 3 NY2d 60; Matter of Towers Mgt. Corp. v Thatcher, 271 NY 94; Matter of Barnes v La Vallee, 45 AD2d 978; Matter of Levy v Huntington Hosp., 45 AD2d 848; Matter of Sardino v Finch, 35 AD2d 686; Matter of Baldwin v McCoy, 35 AD2d 1059; Matter of Buffalo Gen. Hosp. v Sipprell, 33 AD2d 977, 27 NY2d 585; Matter of Dairy Barn Stores v Perlman, 40 Misc 2d 959.) II. Appellant’s determination that respondent was not entitled to a public assistance grant for baby-sitting expenses was proper. (Matter of De Long v Lavine, 48 AD2d 740; Matter of Burns v Lavine, 48 AD2d 1012; Bryant v Wyman, 419 F2d 109; Matter of Howard v Wyman, 28 NY2d 434; Matter of Fletcher v Lavine, 75 Misc 2d 808; State Bd. of Social Welfare v City of Newburgh, 28 Misc 2d 539; Matter of Jones v Berman, 37 NY2d 42; Matter of Diaz v Wyman, 68 Misc 2d 286; First Nat. Bank of Amsterdam v Shuler, 153 NY 163; Matter of Alieva v Fire Dept, of City of N. Y., 29 AD2d 928.)
    
      Marcia Henry and Gerald A. Norlander for respondent.
    I. The refusal to provide child care services to enable respondent to complete the last two years of a teacher training program on scholarship was arbitrary, capricious and an abuse of discretion. (Matter of Hylton v Nyden, 48 AD2d 913; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1, 34 NY2d 222; Matter of Crowley v Bressler, 181 Misc 59.) II. The rule of the Westchester County Department of Social Services prohibiting services to respondent conflicts with State and Federal statutory requirements. (Matter of Jones v Berman, 37 NY2d 42; Townsend v Swank, 404 US 282; Van Lare v Hurley, 421 US 338; Shea v Vialpando, 416 US 251; Carleson v Remillard, 406 US 598; Lewis v Martin, 397 US 552; King v Smith, 392 US 309.) III. The "apparent” rule relied upon by appellant is not valid because it was not promulgated in accordance with law. (People v Cull, 10 NY2d 123; Whiting v Marine Midland Bank—Western, 80 Misc 2d 871; Percy v Brennan, 384 F Supp 800.) IV. The denial to respondent of child care services solely because she needs the services to complete the last two years of a four-year college program violates her constitutional right to equal protection of the laws, when two years of child care services are made available to AFDC recipients in two-year programs. (Hagans v Lavine, 415 US 528; Matter of Abrams v Bronstein, 33 NY2d 488; Neale v Hayduck, 35 NY2d 182; Dandridge v Williams, 397 US 471.) V. Exhaustion of administrative remedies was not required. (Lesron Junior, Inc. v Feinberg, 13 AD2d 90; Metropolitan Club v Consolidated Edison Co. of N. Y., 276 App Div 1061; Matter of Cisco v Lavine, 72 Misc 2d 1009, 1087; Damico v California, 389 US 416; Matter of Mace v Van Lare, 69 Misc 2d 1073; McKart v United States, 395 US 185; Cottrell v Board of Educ. of City of N. Y., 181 Misc 645, 267 App Div 817, 293 NY 792; Board of Educ., Cent. School Dist. No. 1 of Town of Otego v Rickard, 32 AD2d 135.) VI. The Commissioner of the New York State Department of Social Services is not a necessary party to this proceeding. (Matter of Castaways Motel v Schuyler, 24 NY2d 120; Matter of Jones v Berman, 37 NY2d 42.)
   Memorandum. The order of the Appellate Division should be reversed and the petition dismissed.

Assuming, without deciding, that the petition should not be dismissed for petitioner’s failure to exhaust her administrative remedies, we conclude that the denial of her application for allowance for baby-sitting fees was not arbitrary or capricious. Petitioner went on the welfare rolls half way through her four-year college career when she had a daughter and became eligible for benefits under the Aid to Families with Dependent Children program. She is now in full-time attendance in the last two years of a program leading to a teaching degree. A regulation of the State Department of Social Services authorized allowances for baby-sitting services for a recipient "in a two-year college program with specific vocational objective”. (18 NYCRR 352.7 [e] [1]; 369.10 [b].) Petitioner does not fall within the scope of that regulation. When a line of demarcation is to be drawn among college students entitled to babysitting allowances, we cannot fault the department for drawing it to include students in two-year vocational programs and to exclude students in four-year undergraduate, or graduate programs.

Notwithstanding a general statutorily stated objective that wherever possible social services officials shall administer public assistance so as to "restore [recipients] to a condition of self-support” (Social Services Law, § 131, subd 1), petitioner points to no statute or regulation which entitles her to the allowance which she seeks. In this circumstance the determination denying her application was not arbitrary or capricious.

We have examined petitioner’s other contentions and find them to be without merit.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, without costs, and the petition dismissed in a memorandum.  