Matthews v. D’Elia 49 A.D.2d 880

Proceeding pursuant to CPLR article 78 to annul a determination of respondent Commissioner of the Department of Social Services of the State of New York, dated July 19, 1974, which, after a statutory fair hearing, affirmed a determination of respondent Commissioner of Nassau County Department of Social Services that the authorization for medical assistance to petitioner is discontinued. Proceeding dismissed on the merits and determination confirmed, without costs. This proceeding, involving only *881questions of law, was improperly transferred by Special Term to this court; however, we may dispose of it on the merits (CPLR 7804, subd [g]; Matter of Suber v Lavine, 48 AD2d 687). Subdivision (h) of section 360.5 of the Regulations of the Department of Social Services of the State of New York (18 NYCRR 360.5 [h]) applies only in the limited instance where maintenance in kind is provided by a relative and is not applicable where, as here, lodging in kind is furnished by an employer to his employee who is not his relative. Income in kind, including free lodging, is included in determining one’s general eligibility for public assistance (18 NYCRR 352.17 [a]). Hopkins, Acting P. J., Latham, Margett, Brennan and Shapiro, JJ., concur.