
    In the Matter of Beverly Johnson, Individually and on Behalf of Her Infant Children, Lavette Johnson and Another, Petitioner, v Philip Toia, as Commissioner of the New York State Department of Social Services, et al., Respondents.
   Proceeding pursuant to CPLR article 78 to review a determination of the respondent State commissioner, dated April 15, 1976 and made after a statutory fair hearing, which affirmed a determination of the respondent Commissioner of the Nassau County Department of Social Services terminating a grant of aid to dependent children to the petitioner and her children. Determination annulled, on the law, without costs or disbursements, and matter remitted to the State Department of Social Services for a de novo hearing and a new determination. The grant in question was terminated on the ground that the petitioner was the registered owner of a 1970 Saab automobile and a 1969 Dodge automobile and had declined to utilize their value toward the support of herself and her minor children. The 1970 Saab was transferred to one Otis Glenn for no legal consideration. The license plates and registration were subsequently surrendered to the Bureau of Motor Vehicles. The petitioner still possesses the 1969 Dodge, which is presently inoperable. The record does not establish by substantial evidence that the petitioner’s 1969 Dodge was not essential to her transportation to and from work. Nor has it been established that the 1970 Saab is in fact available to the petitioner for sale (see Matter of Knowles v Lavine, 34 NY2d 721, 722; Matter of Wilson v Berger, 52 AD2d 586). In any event, the petitioner’s failure to comply with the demand of the local agency could not serve to deprive her children of the assistance they were entitled to receive as the record does not indicate a present lack of need (see Matter of Ryan v New York State Dept. of Social Servs., 40 AD2d 867; Matter of Zabala v Lavine, 48 AD2d 880, 881). Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.  