Memorandum. The judgment of the Appellate Division should be affirmed, with costs. Under Federal law, a State may elect to pay, with Federal assistance, aid to dependent children benefits to pregnant women. However, the payment of such benefits is not mandatory. (Burns v Alcala, 420 US 575.) In New York, the Department of Social Services, by its own regulations issued in pursuance of its statutory authority (Social Services Law, §§20, 34), within the compass of the statutory eligibility standard for aid to dependent children benefits (Social Services Law, § 349), extended coverage to unborn children, provided that the mother’s pregnancy is medically established. (18 NYCRR 369.2 [a] [1] [i]; Matter of Boines v Lavine, 44 AD2d 765, mot for Iv to app den 34 NY2d 519, cert den 419 US 1040.) Thus, the commissioner’s argument that such coverage is not provided is conclusively and entirely negated by his own regulations. (E.g., Matter of Catoe v Lavine, 51 AD2d 545, mot for lv to app den 39 NY2d 709; Matter of Boines v Lavine, supra.) The commissioner’s remedy lies in his own regulations, not in the courts. Until then the department should comply with the existing final determination of the courts. (Matter of Jones v Berman, 37 NY2d 42, 52-53.)
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.
Judgment affirmed.