This is a proceeding instituted by an unincorporated association, whose members are re*285cipients of public assistance, and 14 individual recipients, challenging the constitutionality of section 131-a of the Social Services Law. The challenge is premised upon the alleged inadequacy of payment levels provided for in section 131-a which, it is asserted, violate section 1 of article XVII of the New York Constitution.
Special Term granted defendant’s motion to dismiss the amended complaint, stating in part that: “the non-justicia.bility of this action is manifest when attention is focused upon the relief sought.” A companion motion seeking a declaration of class action status was dismissed as moot. The court cited Jones v Beame (45 NY2d 402) for the proposition that this controversy was nonjusticiable. That case, however, did not involve a constitutional challenge to a statute. “In New York State, the provision for assistance to the needy is not a matter of legislative grace; rather it is specifically mandated by our Constitution. Section I of article XVII of the New York State Constitution declares: ‘The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine’ ” (Tucker v Toia, 43 NY2d 1, 7).
In Bernstein v Toia (43 NY2d 437, 449) the Court of Appeals held that the principle enunciated in Tucker v Toia (supra) related to the impermissible exclusion of the needy from eligibility for benefits, not to the absolute sufficiency of the benefits distributed to each eligible recipient. In this case, it is claimed that the level, of benefits, not increased since 1974, amounts to an unconscionable failure of the Legislature to implement the mandate of section I of article XVII of the State Constitution.
I need not and do not, at this time, express any view concerning the merits of this litigation and the claim that section 131-a is unconstitutional in that it fails to carry out an obligation created by article XVII of the State Constitution. In order to reverse and deny defendant’s motion to dismiss, leading to reinstatement of the complaint, we need only draw two conclusions. First, that a justiciable controversy exists by virtue of the challenge to the constitu*286tionality of section 131-a (cf., Flushing Nat. Bank v Municipal Assistance Corp. for City of N.Y., 40 NY2d 731, 739). Second, that a valid cause of action exists by virtue of the assertion that the level of benefits amounts to a virtual exclusion of the needy from the support mandated by the Constitution. I so find.
The judgment should be reversed, the motion to dismiss denied and the complaint reinstated.
Yesawich, J. concurs with Ross, J.; Fein, J.P. and Sandler, J., concur in separate opinions and Carro, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on March 25, 1980, affirmed, without costs and without disbursements.