
    In the Matter of Dominick Lamonica, 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 a determination of the respondent State Commissioner of Social Services, dated August 7, 1979 and made after a statutory fair hearing, which affirmed a determination of the local agency denying petitioner’s application for home relief because of his refusal to file income tax returns for a year during which he had been gainfully employed. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. The fair hearing record establishes the petitioner’s refusal to submit income tax returns and it is conceded in his brief that he has “a potentially available resource of 1978 income tax refunds in the amount of $220.54”. “The pressing test for eligibility is the availability of assets rather than those assets actually possessed”. (Matter of Flynn v Bates, 67 AD2d 975, 977.) Hopkins, J. P., Damiani, Titone and O’Connor, JJ., concur.  