
    Frank P. Muller et al., Individually and Natural Guardians of Mary A. Smith and Another, Infants, Petitioners, v. Joseph S. Barbaro, as Commissioner of Nassau County Department of Social Services, Respondent.
    Supreme Court, Special Term, Nassau County,
    January 12, 1970.
    
      Leonard S. Clark and Paul A. Weiss for petitioners. Morris S. Schneider, County Attorney, for respondent.
   Mario Pittoni, J.

In this proceeding pursuant to CPLR article 78 judgment is granted in favor of respondent dismissing the petition.

Petitioners are husband and wife. On behalf of themselves and two minor children of petitioner Mary Muller by a prior marriage (father deceased), it is alleged that respondent has denied emergency assistance to which they are entitled. Respondent’s answer pleads that the mother and the two children receive $373.40 a month (pension and social security payments) and the affidavit of Marvin Racklin, an assistant to respondent, shows that the predicament of petitioners in large part has been caused by the failure of petitioners to co-operate with respondent and others concerned with the welfare of the poor. The assertions in the opposing affidavit have not been contradicted by petitioners, nor has any attempt been made by petitioners to support the conclusory allegations of the petition with factual evidence.

According to section 350-j (subd. 3) of the Social Services Law, 1 ‘ Emergency assistance to needy families with children shall be provided in accordance with the rules of the board and regulations of the department for children who are without available resources ” (emphasis supplied). The Department Regulations provide (1) that “ all resources shall be explored * * * as to their * * * availability to remove or reduce need for assistance ” (§ 352.6 [a]). The Social Security benefits ($230.40) received monthly by the mother of the children after the death of their father must be considered in determining the need for assistance. Section 352.6 (b) (4) (ii) and section 352.12 (f) of the Regulations support that conclusion.

As stated in Matter of Phalen v. Theatrical Protective Union No. 1, (27 A D 2d 909, revd. on another ground 22 N Y 2d 34), “ In the absence of a violation of a statutory duty, an article 78 proceeding for mandamus does not lie ”. In view of the uncontradicted factual statements concerning respondent’s activities on behalf of petitioners and the resources available to petitioners, it may not be concluded that respondent violated any statutory obligation. Therefore, the petition is dismissed.  