
    (January 21, 1981)
    In the Matter of Barbara Hairston, 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 June 2, 1977 and made after a statutory fair hearing, which affirmed a determination of the local agency discontinuing petitioner’s regular grant of aid for dependent children. By order dated January 29,1979 this court granted the petition to the extent of annulling the determination and remitting the matter to the State commissioner for further proceedings (Matter of Hairston v Toia, 67 AD2d 730). By a further order, dated July 17, 1979, this court, inter alia, ordered “reargument of the question of whether a local social services official may terminate public assistance (AFDC) when the able-bodied, employed parent, formerly absent from the home, returns to and is present in the household where the children who are receiving AFDC reside with their mother.” Upon such reargument, the order dated January 29,1979 is vacated, the determination of the State commissioner is confirmed, without costs or disbursements, and the proceeding is dismissed on the merits. The State commissioner affirmed the local agency’s finding that the adjudicated father of petitioner’s children, who is not married to petitioner, was residing in her household, that he was employed and providing support for his children, and that petitioner failed to report these facts to the local agency. These factual conclusions are supported by substantial evidence and, accordingly, the proceeding must be dismissed. We note that the termination of petitioner’s assistance results not from any unconstitutional “irrebuttable presumption” concerning the actual availability of the father’s income, but rather from petitioner’s inability, as established by the findings of record supported by substantial evidence, to meet valid statutory criteria of categorical eligibility for aid to dependent children (see US Code, tit 42, § 606, subd [a]; Social Services Law, § 349, subd B, par 1; cf. King v Smith, 392 US 309). Mollen, P. J., Hopkins, Rabin and Gulotta, JJ., concur.  