
    In the Matter of Robin Burgess, Petitioner, v Philip Toia, as Commissioner of the Department of Social Services, et al., Respondents.
    Supreme Court, Special Term, Nassau County,
    January 13, 1977
    
      Leonard S. Clark for petitioner. Louis J. Lefkowitz, Attorney-General, for respondents.
   Douglas F. Young, J.

In this proceeding pursuant to CPLR article 78 judgment is granted the petitioner reversing the determination of the respondent Commissioner of New York State Department of Social Services which after a fair hearing affirmed the determination of the respondent Commissioner of the Nassau County Department of Social Services and the respondent Commissioner of Nassau County Department of Social Services is directed to include the then unborn child in its budget computation effective November 1, 1975 instead of December 1, 1975 provided for in the original determination.

The decision after the fair hearing notes that: "(3) Appellant was in her fourth month of pregnancy during November, 1975. Section 352.30(c) of the Regulations provides that the household of a pregnant woman shall be deemed increased by one person from the fourth month of a medically verified pregnancy. The credible evidence is that appellant did not submit verification to the agency prior to February, 1976. Appellant contended that her grant should have been increased retroactively to November, 1975, the fourth month of her pregnancy. Had she submitted verification of her pregnancy at that time, her contention would be correct. The agency is not authorized to issue the pregnancy allowance prior to receipt of medical verification thereof.”

The decision does not explain why, if retroactivity is improper, the grant was increased retroactively to December 1, 1975.

Respondents’ interpretation of the regulation is erroneous. While the household cannot be deemed increased until there is verification of the pregnancy, the regulation does not provide for this increase from the date of verification, but rather from the fourth month of a pregnancy which is medically verified.

Accepting respondents’ factual findings as correct the petitioner’s grant should have been increased retroactively to November, 1975.  