MATTER OF MENDELSOHN v. Toia , 46 N.Y.2d 823 ( 1978 )

46 N.Y.2d 823 (1978)

In the Matter of Ben Mendelsohn, Respondent,
v.
Philip L. Toia, Individually and as Commissioner of the New York State Department of Social Services, et al., Appellants.

Court of Appeals of the State of New York.

Argued November 30, 1978. Decided December 27, 1978.

Louis J. Lefkowitz, Attorney-General (Sanford Peyser, Samuel A. Hirshowitz and Herbert J. Wallenstein of counsel), for Philip L. Toia, as Commissioner of the New York State Department of Social Services, appellant.

Samuel S. Yasgur, County Attorney (Evelyn K. Isaac and Jonathan Lovett of counsel), for Charles W. Bates, as Commissioner of the Westchester County Department of Social Services, appellant.

Gerald A. Norlander and Martin A. Schwartz for respondent.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

MEMORANDUM.

The order appealed from should be reversed, without costs.

Petitioner's request for public assistance to finance the expense of his wife's funeral was properly denied. Subdivision 3 of section 141 of the Social Services Law provides that the public welfare official for an area may pay all or part of the funeral expenses "[w]hen burial arrangements for a recipient of public assistance or care are made by relatives or friends of the deceased and the expense of such burial does not exceed the amount fixed by the appropriate public welfare official or the local appropriating body for similar burials in similar circumstances". The Westchester County Department of Social Services fixed the maximum reimbursable amount for a funeral at $650 by regulation which provided that "[t]he department will pay up to $650 from public funds for a complete funeral (including grave and grave opening) of adult persons who die in Westchester County leaving no insurance, no Social Security death benefit, no assets and when responsible relatives are financially unable to pay the cost of burial in whole or in part, and money is not available from any other source. Total funeral bill cannot exceed $650" (emphasis added). Nothwithstanding his awareness of the regulation, petitioner arranged for a funeral which cost $1,312.42, and the Department of Social Services denied reimbursement. This denial, in the face of clear statutory language and an equally clear implementing regulation, was proper.

Order reversed, without costs, and the determination of the State Commissioner reinstated in a memorandum.