
    In the Matter of Deborah Genin, Appellant, v Philip L. Toia, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued May 30, 1979;
    decided July 3, 1979
    
      APPEARANCES OF COUNSEL
    
      E. Anne Hayes and John C. Gray, Jr., for appellant.
    
      Robert Abrams, Attorney-General (Gerald Slotnik and Herbert J. Wallenstein of counsel), for Philip L. Toia, as Commissioner of the State Department of Social Services, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and supplementary grant of public assistance in the category of aid to dependent children to petitioner should be reinstated.

The Commissioner of the State Department of Social Services erred in prorating household expenses between petitioner and her nine-year-old child, a recipient of Social Security survivors’ benefits. A child’s Social Security benefits may not be deemed available income for the purpose of determining eligibility for aid to dependent children when such benefits are sufficient to satisfy the needs of the child and the representative payee does not choose to include the child within the AFDC assistance unit. (See Johnson v Harder, 383 F Supp 174, affd 512 F2d 1188, cert den 423 US 876; Howard v Madigan, 363 F Supp 351; Matter of Nelson v Toia, 92 Misc 2d 575, affd 60 AD2d 796, mot for lv to app den 44 NY2d 646; Matter of Snowberger v Toia, 60 AD2d 783, affd 46 NY2d 803.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.  