De Jonge v. Blum

434 N.E.2d 1076, 55 N.Y.2d 1030, 449 N.Y.S.2d 709, 1982 N.Y. LEXIS 3199

Opinion

opinion of the court

Memorandum.

The orders of the Appellate Division should be affirmed, with costs. The allowance for an unborn child may not be prórated by counting the expectant mother as a member of the statutory household when in fact she has no unmet needs (Snowberger v Toia, 46 NY2d 803). Nor may the commissioner urge that it is reasonable to treat an unborn child differently from other needy persons in view of the fact that the commissioner’s own regulations expressly provide that an unborn child shall be considered as a living child for the purpose of the basic allowance (18 NYCRR 369.2 [a] [1] [i]; also cf. Matter of Rankin v Lavine, 41 NY2d 911). That is not to say that the commissioner could not reasonably have adopted a different regulation, nor do we pass upon the effect or validity of the recent amendment to the Social Services Law (L 1981, ch 1053, § 3, now Social Services Law, § 131-a, subd 6, par [e]).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, FuchsbeRg and Meyer concur.

In each case: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, in a memorandum.