Decree affirmed with costs. Memorandum: We agree with the Surrogate that Social Services Law § 369 (1) (b) and § 366 (3) permit recovery against the estate of a responsible relative for reimbursement of the cost of medical assistance to a recipient only if, at the time of the furnishing of the medical assistance, the responsible relative had sufficient income and resources to provide medical assistance. Only if the responsible relative has sufficient income and resources does "the furnishing of such assistance * * * create an implied contract with such relative” (Social Services Law § 366 [3] [a]). Absent an implied contract with the responsible relative, there can be no recovery for reimbursement of medical expenses against that relative’s estate. We decline to follow Matter of Imburgia (130 AD2d 658, 659) insofar as it holds to the contrary.
All concur, except Callahan, J. P., who dissents and votes to reverse in the following Memorandum.