(dissenting). I respectfully dissent. I do not construe Social Services Law § 369 (1) (b) and § 366 (3) as limiting recovery from the estate of a responsible relative for reimbursement of the cost of medical assistance to a recipient only in a situation in which the responsible relative had sufficient income and resources at the time the benefits were paid. Social Services Law § 369 (1) (b) specifically provides that, upon the death of a surviving spouse, there may be recovery for medical assistance furnished pursuant to subdivision (3) of section 366. Under that subdivision, the furnishing of such assistance creates an implied contract with the relative and the cost may be recoverable. Furthermore, there is no conflict between State and Federal law that bars the recoupment of medical assistance paid to a recipient from the estate of the recipient’s surviving spouse (Matter of Imburgia, 130 *1017AD2d 658; see also, Matter of Kummer, 93 AD2d 135). (Appeal from Decree of Wayne County Surrogate’s Court, Strobridge, S. — Judicial Settlement.) Present — Callahan, J. P., Boomer, Green, Lawton and Boehm, JJ.