Opinion
January 22, 1990
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court's denial of the petitioner's application for an award of attorney's fees pursuant to 42 U.S.C. § 1983 and 1988 was a proper exercise of discretion. The petitioner's claim that the city's determination granting her 12-hour-a-day home care services was arbitrary and capricious and a violation of State and Federal law (see, Social Services Law § 365-a; 42 U.S.C. § 1396 et seq.; 42 C.F.R. § 440.170 [f]) does not constitute a substantial claim pursuant to 42 U.S.C. § 1983 so as to warrant an award of attorney's fees (see, Matter of Gelin v. Perales, 149 A.D.2d 593; Matter of Rozier v. Perales, 149 A.D.2d 710; Matter of Misuraca v. Perales, 120 A.D.2d 592).
Parenthetically, we note that there is no indication in the record of the Commissioner of the New York State Department of Social Services being added as a party respondent. Since it is the State Commissioner who would be ultimately responsible for an award of attorney's fees (see, Matter of Unger v. Blum, 117 A.D.2d 607, 608), such an award could not be made under the current posture of the proceeding. Mollen, P.J., Mangano, Thompson and Brown, JJ., concur.