
    In the Matter of Child and Family Service of Syracuse and Onondaga County, Respondent, v Philip L. Toia, as Commissioner of New York State Department of Social Services, Respondent, and John Lascaris, as Commissioner of the Onondaga County Department of Social Services, Appellant.
    Argued January 8, 1979;
    decided February 13,1979
    
      POINTS OF COUNSEL
    
      John A. Barnaba and James H. Hughes for appellant.
    I. The determination of respondent Toia that the local agency correctly determined not to authorize the expenditure of public funds in the form of medical assistance to petitioner Child and Family Service of Syracuse and Onondaga County was supported by the substantial evidence adduced from the minutes of the fair hearing and the exhibits attached thereto. (Landing Estates v Jones, 67 Misc 2d 354; Matter of Hamer v Urstadt, 74 Misc 2d 719; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Burton Trucking Corp. v O’Connell, 7 NY2d 299; Matter of Neet v Hults, 26 AD2d 970; Matter of Borek v Toia, 56 AD2d 727; People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185; Matter of Roe v New York Foundling Hosp., 36 AD2d 100; People ex rel. Anonymous v Saratoga County Dept. of Public Welfare, 30 AD2d 756.) II. The determination of respondents was correct as a matter of law. (Jensen v United States, 78 F Supp 974; Rutkowski v Wasko, 286 App Div 327; Matter of Korte, 78 Misc 276; Lorden v United States, 83 F Supp 822; Matter of Schenectady County Dept. of Social Servs. v Patricia Ann S., 73 Misc 2d 104.) III. The term support within the context of section 384 (subd 2) of the Social Services Law is meant and intended to include medical care and assistance for a child surrendered to an authorized agency. (“Harrison” v “Harrison”, 202 Misc 19; “Bentley” v “Bentley”, 191 Misc 972; Matter of Domes v Board of Supervisors of Erie County, 230 App Div 276.)
    
      Thomas E. Myers and John M. Freyer for Child and Family Service of Syracuse and Onondaga County, respondent.
    I. The county commissioner is bound by the State commissioner’s decision not to appeal. (Matter of Oswego County Dept. of Social Servs. v Toia, 91 Misc 2d 871; Matter of Aroune v Sipprell, 36 AD2d 888, 33 NY2d 844.) II. The commissioners’ determinations denying medical assistance to the three infants were arbitrary, capricious and erroneous as a matter of law. (Matter of Catoe v Lavine, 51 AD2d 545, 39 NY2d 709; Tucker v Toia, 43 NY2d 1.) III. Assuming that Child and Family is a "responsible relative” of the three infants, the record is devoid of evidence that Child and Family had sufficient financial resources to make the infants ineligible for medical assistance. (Matter of Weir v Berger, 57 AD2d 629; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Stork Rest. v Bowin, 282 NY 256; Matter of Santiago v Toia, 60 AD2d 156.) IV. Section 384 (subd 2) of the Social Services Law is limited in application to ordinary support received by private adoption agencies and does not apply to medical assistance paid directly to hospitals and physicians under section 366 of the Social Services Law. V. Denial of medical assistance to children surrendered to a private authorized adoption agency would deny the infants equal protection of the laws. (Matter of Lee v Smith, 43 NY2d 453; Matter of Arnold v Reed, 43 NY2d 829; Matter of Schenectady County Dept. of Social Servs. v Patricia Ann S., 73 Misc 2d 104; Williams v Wohlgemuth, 366 F Supp 541, 416 US 901; Matter of Catoe v Lavine, 51 AD2d 545; United States Dept. of Agric, v Moreno, 413 US 528.)
   OPINION OF THE COURT

Per Curiam.

Section 366 (subd 1, par [a], cl [5]) of the Social Services Law requires that "Medical assistance shall be given * * * to a person who requires such assistance and who * * * although not receiving nor in need of public assistance or care for his maintenance under other provisions of this chapter, has not, * * * sufficient income and resourses, including available support from responsible relatives, to meet all the costs of medical care and services available under this title, and is either (i) under the age of twenty-one years or over the age of sixty-four years.” Respondents admitted that the three infants who required medical care were without income or resources of their own, but nevertheless denied them assistance, contending that the available resources of the Child and Family Service of Syracuse and Onondaga County, to whom the children had been surrendered, must be taken into account as available support. We are required to reject this contention.

While the care and custody of these three children had been surrendered to the Child and Family Service pursuant to written surrender instruments (Social Services Law, §§ 383, 384), the agency is still not a "responsible relative”. Its function is the more limited one of caring for the childrens’ needs only until adoption can be arranged. Given this limited contact with the children, the Service is not legally a relative within the contemplation of section 366, and its income and resources may not be considered by the Department of Social Services in computing eligibility for medical assistance.

Accordingly, the judgment of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion.

Judgment affirmed.  