Zink v. Battistoni

In a proceeding pursuant to CPLR article 78, to review a determination of the New York State Commissioner of Social Services dated July 17, 1985, which affirmed a determination of the local agency denying the petitioner’s application for emergency assistance, the petitioner appeals from an order of the Supreme Court, Dutchess County (Benson, J.), dated April 1, 1986, which dismissed her petition for failure to state a cause of action.

*568Ordered that the judgment is reversed, on the law, with costs, the proceeding is reinstated, and the matter is remitted to the Supreme Court, Dutchess County, for further proceedings.

A person who is destitute is entitled to emergency assistance pursuant to Social Services Law § 350-j in order to replace spoiled food if she can show that her refrigerator broke down, the supply of food spoiled, and she has no immediate funds with which to replace the food (see, e.g., Matter of Borders v Nassau County Dept. of Social Servs., 34 AD2d 805). As the petition in the case at bar alleged precisely these facts, it stated a valid cause of action and should not have been dismissed. Mollen, P. J., Bracken, Niehoff and Lawrence, JJ., concur.