
    In the Matter of Brian Fox, Petitioner, v Joseph D’Elia, as Commissioner of the Nassau County Department of Social Services, et al., Respondents.
   — Proceeding pursuant to CPLR article 78 to review so much of a determination of the State Commissioner of Social Services, dated May 11, 1981, as affirmed that part of a determination of the local agency disqualifying petitioner from receiving public assistance in the category of home relief for a period of 30 days as a result of his refusal of service at the State Employment Service. Petition granted, determination annulled insofar as reviewed, on the law, without costs or disbursements, and respondents are directed to reimburse petitioner for that period of time during which he was improperly disqualified from receiving home relief. The State commissioner’s determination insofar as reviewed was not supported by substantial evidence. In order to disqualify petitioner from receiving public assistance there must be a finding that he willfully refused, without good cause, a referral to available employment (18 NYCRR 385.7). There is no evidence on the record that a referral was ever made (see Matter of Atkinson v Blum, 78 AD2d 550). Petitioner’s remark to employees at the State Employment Service that he attended Gateway House, a day treatment facility, daily from the hours of 10:00 a.m. to 3:00 p.m., cannot be deemed a refusal of referral to employment. Accordingly, the State commissioner’s determination must be annulled insofar as reviewed. Damiani, J. P., Lazer, Mangano and Thompson, JJ., concur.  