
    In the Matter of Michael Banker, Petitioner, v Stephen Berger, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Supreme Court, Orleans County,
    March 26, 1976
    
      
      Gerald P. Seipp for petitioner. Louis J. Lefkowitz, Attorney-General (Peter J. Todoro of counsel), for respondents.
   Joseph S. Mattina, J.

A CPLR article 78 proceeding is brought before this court to reverse and annul the fair hearing decision and to grant relief of retroactive assistance in the amount of $193.69.

The respondent opposes this motion setting forth several affirmative defenses.

The facts in this case are that petitioner who was not totally dependent on public assistance received income tax refunds, the proceeds of which were used to purchase a 1967 Oldsmobile automobile necessary to get him back and forth to work, his previous vehicle having been recently repossessed.

At the fair hearing, the tax refund was considered a readily available resource pursuant to 18 NYCRR 352.23 (a) and therefore to be used to reduce his public assistance by $193.69 which was accomplished in April and May of that year.

18 NYCRR 352.23 provides in part that: "Utilization of resources-general policy, (a) Resources shall be so utilized as to eliminate or reduce the need for public assistance, rehabilitate the client and conserve public funds through assignment and recovery. Applicants and recipients shall generally be required to utilize available resources and to apply for and otherwise pursue potentially available resources”.

The application of this section to the factual situation present in this case makes it clear that the purchase of the vehicle was a utilization contemplated under the statute, namely, to reduce the need for public assistance through employment. The consideration of the $193.69 as a readily available resource under these circumstances was an abuse of discretion. Accordingly, the fair hearing decision is reversed and annulled and the petitioner is granted retroactive assistance in the amount of $193.69.  