
    In the Matter of Margaret Messina, Individually, and on Behalf of Her Infant Children, Frank Scalia, and Others, 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 of Social Services, dated August 9, 1976 and made after a statutory fair hearing, which affirmed (1) a determination of the Commissioner of the Fulton County Department of Social Services to discontinue public assistance benefits in the category of aid to dependent children to petitioner and her children and (2) a determination of the Commissioner of the Nassau County Department of Social Services to deny such benefits, on the ground that petitioner was the co-owner of the house in which she resided and had failed to furnish information with regard to such ownership. Petition granted and determination annulled, on the law, without costs or disbursements, and benefits are directed to be reinstated, retroactively from April 30, 1976, the date of their termination. The finding that petitioner was the owner of the house was not sustained by substantial evidence (see Matter of Payne v Sugarman, 39 AD2d 720, affd 31 NY2d 845; Matter of Skerret v Berger, 55 AD2d 915). Matter of Lia v Berger (57 AD2d 838) is distinguishable on its facts. Rabin, J. P., Shapiro and Suozzi, JJ., concur; O’Connor, J., dissents and votes to confirm the determination as to the petitioner and to remand to the respondent State commissioner the issue of the needs of the children, with the following memorandum: The devious dealings of petitioner, amounting closely to outright fraud, brings this proceeding within the ambit of Matter of Lia v Berger (57 AD2d 838). Remand, however, is required to determine the needs of the children (see Matter of Rosa v Lavine, 50 AD2d 571).  