
    Rita Gutowski, Appellant, v. Abe Lavine, as Commissioner of the Department of Social Services of the State of New York, Respondent.
   Judgment unanimously reversed, with costs, and petition granted. Memorandum: On December 6, 1971, petitioner applied to the Erie County Department of Social Services for public assistance. Her application was accepted and her eligibility established on December 27, 1971. Petitioner sought a preinvestigation grant for the period of the processing of her application pursuant to section 133 of the Social Services Law and 18 NYCRR 351.13(d) (since amd., see, 18 NYCRR 351.8[c] [4]). A hearing was held before a hearing officer on March 9, 1972 and on April 12, 1972 the Acting Commissioner denied the requested relief in a written decision upon the ground that pursuant to 18 NYCRR 351.13(b) the agency had accepted petitioner’s application for assistance within 30 days of the application. However, he found that at the time of petitioner’s original application her rent was unpaid and she had neither assets nor income for her support. Petitioner then brought this article 78 proceeding. Special Term correctly determined that the fact that the agency had acted within 30 days of the application was not relevant to the grant or denial of an- emergency or preinvestigation allowance under 18 NYCRR 351.13 (d), but denied petitioner’s application on the ground that no emergency existed. The provisions of 18 NYCRR 351.13(b), relied upon by the Acting Commissioner, had no relevance to the awarding of a preinvestigation grant under 18 NYCRR 351.13(d) and, therefore, the denial pursuant to that section was an error of law (CPLR 7803, subd. 3). It was error for Special Term to consider whether or not petitioner’s situation was an emergency since section 133 of the Social Services Law as implemented by 18 NYCRR 351.13(d), does hot require emergency need, but rather only immediate need and, on the finding of the Acting Commissioner, she had such need. We note that as of August 31, 1973 the regulations were amended to permit the grant- of assistance payments to be made retroactive to the date of the application (18 NYCRR 351.8 [b] [2]). (Appeal from judgment of Erie Special Term dismissing petition in article 78 proceeding for welfare assistance.) Present — Marsh, P. J., Witmer, Moule,' Cardamone and Goldman, JJ.  