De Luca v. D'Elia , 374 N.Y.S.2d 92 ( 1975 )

Daniel G. Albert, J.

In this proceeding pursuant to CPLR article 78, petitioner seeks judgment annulling the determination by the predecessor in office of respondent Berger dated March 11, 1975, which affirmed the determination of the Nassau County Department of Social Services to recoup over-payments of assistance received by petitioner as a result of incorrect budgeting.

Petitioner, a recipient of aid to dependent children, receives income from employment, a portion of which is exempt from consideration in determining eligibility need under section 602 (subd [a], pars [7], [8]) of title 42 of the United States Code. Such exempt income, known as "disregards”, is, according to petitioner, not entitled to be considered as "income or resources exclusive of the current assistance payment currently available” for purposes of recoupment within the meaning of section 233.20 ([a], [12], [i], [A], [1]) of title 45 of the Code of Federal Regulations. This contention, in the opinion of this court, is without merit. Petitioner has received assistance funds to which she is not entitled and the State has the right, and, indeed, the duty to utilize the regulation at its disposal, to wit, 18 NYCRR 352.31 (d) (1) (ii), to recover such funds. There is no conflict between that regulation and the Federal regulation referred to above nor is the State regulation in violation of the Federal Social Security Act.

Accordingly, the petition is dismissed.