Joanne Swift, Individually and on Behalf of Her Minordaughter, Michelle Swift, and on Behalf of Allother Persons Similarly Situated,plaintiffs-appellees,lylia Roe, Plaintiff-intervenor, v. Barbara Blum, Individually and As Commissioner of the Newyork State Department of Social Services, Philip L. Toia,charles W. Bates, Individually and As Commissioner of Thewestchester County Department of Social Services, Johnbattistoni, Individually and As Acting Commissioner of Thedutchess County Department of Social Services, and Gabrielt. Russo, Individually and As Commissioner of the Monroecounty Department of Social Services, Defendants,barbara Blum, Individually and As Commissioner of the Newyork State Department of Social Services, Philip L. Toia,and Gabriel T. Russo, Individually and As Commissioner Ofthe Monroe County Department of Social Services,defendants-appellants, 598 F.2d 312 (2d Cir. 1979)

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U.S. Court of Appeals for the Second Circuit - 598 F.2d 312 (2d Cir. 1979) Argued April 19, 1979. Decided April 25, 1979

Eileen R. Kaufman, New Rochelle, N. Y. (Martin A. Schwartz, White Plains, N. Y., Westchester Legal Services, Inc., New Rochelle, N. Y., of counsel), for plaintiffs-appellees.

Marion R. Buchbinder, Asst. Atty. Gen. of the State of New York, New York City (Robert Abrams, Atty. Gen., George D. Zuckerman, Asst. Atty. Gen., New York City, of counsel), for defendants-appellants Blum and Toia.* 

Before KAUFMAN, Chief Judge, SMITH, Circuit Judge, OWEN, District Judge.** 

PER CURIAM:


We affirm on Judge Werker's opinions for the district court, reported at 450 F. Supp. 983 and 461 F. Supp. 578.

The only issue requiring additional comment is the State's contention that it does not in fact automatically pro-rate AFDC benefits when a child whose needs are met by non-welfare sources (and thus is not eligible for benefits) resides with the assistance unit. We conclude that Judge Werker correctly determined that there was not a genuine issue as to the existence of this policy. The state did not make an individual determination as to either named plaintiff that her child's income was applied to shared household expenses. Rather, in both cases proration was based solely on a finding that the payments were sufficient to meet the child's portion of those costs. This, in effect, presumed contributions to the household from the mere existence of income, thereby contravening Van Lare v. Hurley, 421 U.S. 338, 95 S. Ct. 1741, 44 L. Ed. 2d 208 (1975), and its implementing regulations, 45 C.F.R. §§ 233.20(a) (2) (viii), 233.90(a).

 *

Appellant Russo defaulted on the appellate scheduling order, and his appeal was dismissed by order dated March 9, 1979

 **

Of the United States District Court for the Southern District of New York, sitting by designation