
    In the Matter of Andrea Vassallo, Appellant-Respondent, v Gregory M. Kaladjian, as Acting Commissioner of the New York State Department of Social Services, Respondent-Appellant, and Richard F. Schauseil, as Director of the Monroe County Department of Social Services, Respondent.
    [629 NYS2d 150]
   Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Respondents acted arbitrarily in considering sums of money given to petitioner by her estranged husband to be income available to her for support, thereby eliminating her entitlement to Aid to Dependent Children benefits. The money was given to petitioner to pay her husband’s share of outstanding marital debt and respondents’ investigation confirmed that petitioner used the funds for that specific purpose. Thus, the sums were not actually available to petitioner for support (see, 45 CFR 233.20 [a] [3] [ii] [D]; Henry v Gross, 803 F2d 757, 764). Consequently, we modify the judgment on appeal by granting that part of the petition seeking to annul the determination of respondents that petitioner received available income from her husband, and we remit the matter to Supreme Court for further proceedings to determine whether petitioner is entitled to an award of counsel fees. (Appeals from Judgment of Supreme Court, Monroe County, Cornelius, J.—CPLR art 78.) Present—Denman, P. J., Green, Fallon, Doerr and Balio, JJ.  