
    In the Matter of Jack Newborn et al., Petitioners, v Philip Toia, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Supreme Court, Special Term, Kings County,
    December 16, 1976
    
      Stephen M. Bernstein for petitioners. W Bernard Richland, Corporation Counsel, for J. Henry Smith, respondent. Louis J. Lefkowitz, Attorney-General, for Philip Toia, respondent.
   Irving P. Kartell, J.

In this CPLR article 78 proceeding petitioners seek to review and annul certain portions of a determination of the respondent Social Services officials concerning their application for medical assistance.

The determination under review remitted to the respondent New York City Department of Social Services the question of petitioners’ application for further consideration according to certain guidelines.

Petitioners claim that in addition to the guidelines allowed in the determination, various work-related deductions should be taken into consideration in determining their eligibility.

The New York Court of Appeals has recently held that in determining eligibility for medical assistance, the Federal requirements demand a consideration of income "actually available” and thus ruled that FICA (Social Security) deductions are to be subtracted from income (Matter of Dumbleton v Reed, 40 NY2d 586).

The same result was had in a class action commenced in the Federal courts (Aitchison v Berger, 404 F Supp 1137, affd 538 F2d 307, cert den 429 US 890).

The decision in Aitchison (supra) held the New York procedures to be invalid and required respondents to measure eligibility for working persons along the same guidelines as for public assistance recipients.

Pursuant to these decisions, all reasonable work-related expenses are to be subtracted in determining eligiblity for medical assistance.

Accordingly, the petition is granted to the extent of adding to the determination the requirement that the city Department of Social Services subtract FICA and pension deductions as well as work-related expenses similar to those set forth in 18 NYCRR 352.19, in determining petitioners’ eligibility for medical assistance.  