Colon's Estate, In re
Decision Date | 18 August 1975 |
Citation | 372 N.Y.S.2d 812,83 Misc.2d 344 |
Parties | In re ESTATE of Amelia COLON. Application of Jesus COLON, as Administrator of the goods, chattels and credits that were of Amelia Colon, Deceased, for leave to settle and compromise an action for conscious pain and suffering and wrongful death of the decedent and to render and judicially settle his account as such administrator. Surrogate's Court, Kings County |
Court | New York Surrogate Court |
Samuel Wiener, New York City, for petitioner.
W. Bernard Richland, Corp. Counsel, by Hyman Frankel, Special Asst. Corp. Counsel, New York City, for respondents; Sol Gogel, of counsel.
Travers E. Devlin, Brooklyn, Guardian ad litem for infant.
NATHAN R. SOBEL, Surrogate.
The recurring problem of the right of Social Service Departments ('Departments') to recover for public assistance and care given to needy recipients has been troubling our courts since 1935 and with increasing frequency of late. In our Supreme Court such issues arise mainly with respect to claims by a Department against personal injury recoveries. The Surrogate's Courts are concerned with claims by a Department against estates and as well against legatees and distributees of these estates.
Although there have been hundreds of reported decisions, for reasons which are obvious, none has attempted to articulate at any length the basis for such decision. It may be helpful to state in the briefest manner the applicable general principles.
1. In the absence of a recovery statute authorizing a Department to recover assistance and care correctly paid, there is no obligation to repay the Department. (City of Albany v. McNamara, 117 N.Y. 168, 22 N.E. 931) New York has enacted such 'recovery statutes.' (Social Services Law, §§ 101, 104 (subd. 1), 104 (subd. 2), 104--b, 369). Although enacted separately, these recovery statutes are interrelated and dependent upon one another.
2. A recovery statute is one which authorizes a Department to recover the cost of assistance and care (a) from a 'recipient' or the estate of such recipient, and (b) from a 'responsible relative' of such recipient or from the estate of such responsible relative.
Almost all assistance and care to the needy of this state is today given under one or another of the categorical programs (mainly 'Assistance for Families with Dependent Children ('AFDC') and Medical Assistance ('MA')) under the Social Security Act. As a condition of federal assistance, some of these programs limit the resources, both in terms of the recipient's property and contribution from his responsible relatives, to which the State may look in determining eligibility. As a consequence New York has been compelled to amend its recovery statutes or enact new recovery statutes. Preamendment decisions in many cases are no longer relevant.
Since Departments often contend before the courts that denial of recovery imperils federal assistance, it should be observed that the Social Security Act does not require as a condition of assistance that States enact recovery statutes. In fact many States have none. True, Congress has given implied recognition to recovery statutes by requiring States which do recover to share the recovered proceeds. (e.g. 42 U.S.C.A. § 603 subd. (b) par. (2)) But the federal statute is directed toward 'incorrectly' not correctly paid assistance.
3. Some problems arising under the AFDC and MA programs should be mentioned.
AFDC was initiated as ADC in this State in 1936 under the Social Security Act of 1935. The later substituted AFDC program although benefiting primarily dependent children of the family, also provided for the allocation of assistance to the head of the 'family,' usually the mother. Under our recovery statutes recovery may often be had against the mother for assistance allocated to her but not to the children. The Departments are required to maintain separate allocations and are most cooperative in furnishing such records to the courts.
MA as a federally assisted program was initiated in this State in 1966 (L.1966 c. 256, eff. April 30, 1966). The cited statute, as will be later discussed, made drastic changes in our recovery statutes. Among the changes mandated by the federal act (42 U.S.C.A. § 1396a subd. (a) par. (18)) were severe limitations on the recipient's resources to which the Departments could look in determining eligibility. The cited 1966 statute to conform added section 369 to the Social Services Law. Unlike the other recovery statutes Section 369 was made applicable solely to MA recoveries. Since however AFDC families are automatically eligible for MA, frequently courts will be required to allow recovery for AFDC but not for MA assistance. The Department will be required to segregate these allocations. (See e.g. Moore v. Nassau County Dept. of Public Transportation, 78 Misc.2d 1066, 357 N.Y.S.2d 652.)
With these general observations we consider the recovery statutes, emphasizing however that section 104 is the basic statute which in the first instance determines liability and around which the other statutes (Soc.Serv.Law, §§ 101, 104--b, 369) revolve.
We discuss here section 101 solely as a 'responsible relative' statute. (We do not discuss its function together with other statutes (Social Services Law, § 101--a; Domestic Relations Law, § 32; Family Court Act, §§ 412--415, 422, 422a; Mental Hygiene Law, § 43.03) to require Contemporaneous contribution by responsible relatives for assistance presently provided to their recipient relatives.)
To the extent section 104 authorizes a Department to recover, section 101 defines who is a 'responsible relative' (hereafter 'RR') from whom recovery may be had for assistance granted to his recipient relative. The statute antedates the Social Security Act by over a century.
It became a statewide law when the State took over from the municipalities responsibility for public assistance. (L.1929 c. 565 as Public Welfare Law, § 125, later reenacted and renumbered Social Services Law, § 101)
Section 101 has been amended many times. As originally enacted in 1929, a spouse was responsible for the other spouse; grandparents and parents were responsible for their adult and infant grandchildren and adult and infant children and grandchildren were responsible for their parents and grandparents.
The first major change in the statute was made in 1936 (L.1936 c. 426, § 1). The 1936 amendment exempted infant children or grandchildren from all responsibility for their parents or grandparents. Although no decision has considered the question, the 1936 amendment also exempted infant spouses and infant parents from all responsibility for assistance and care given to their spouses or infant children, while such RR spouse or parent was an infant.
The next and last major amendment to section 101 was made in 1966 (L.1966 c. 256 § 18). The 1966 amendment exempted adult children (as had the 1936 amendment infant children) from responsibility for their parents and exempted parents from all responsibility for their adult children. Parents, however, remained responsible for their infant children and adult children remained responsible for their spouses and infant children.
It is observed that the 1966 amendment was commanded on the States by the Social Security Act but only with respect to the MA categorical program. (See 42 U.S.C.A., § 1396a, subd. (a) par. (17).) New York, in amending section 101, made the new provisions applicable to All assistance whether federally or solely locally supported.
Section 101 in addition to defining who are RR's also limited the conditions under which an RR could be found liable. The statute specifically provides that one is an RR only 'if of sufficient ability.' This provision, as discussed under section 104, has been held to mean 'of sufficient ability during the period when assistance was being provided to the recipient relative.' (Hodson v. Stapleton, 248 App.Div. 524, 290 N.Y.S. 570; Klebes v. Condon, 260 App.Div. 238, 22 N.Y.S.2d 86)
Section 104, next to be discussed, further limits the liability of an RR. Subject to such further limitations, under the definitions of present section 101 only the following can be held responsible as an RR:
(a) An adult spouse for assistance and care to his spouse.
(b) An adult parent and step-parent only for assistance and care to his infant children or stepchildren.
But such RR's can only be held responsible if they were 'of sufficient ability' during the period when assistance was being given to their recipient relative.
And, in conclusion, an infant (under 21) can never be held responsible as an RR.
Responsibility of Adult Recipients or their Estates and Responsibility of Adult RR's or their Estates: Social Services Law, § 104, subd. 1
As earlier observed, section 104 is the basic recovery statute upon which all others depend.
As first enacted in 1901 (L.1901 c. 664, § 1, Poor Laws, § 57) it applied only to the liability of the recipient ('Recovery from Paupers'). It was recodified in 1929 (L.1929 c. 565 as Public Welfare Law, § 128, now Social Services Law, § 104) to apply to recipients, to the estates of recipients, to RR's and to the estates of RR's.
Subdivision 1 of section 104 (subd. 2 is discussed separately) as enacted in 1929 (and as it reads today) in relevant part provides as follows:
Some 100 odd decisions construe section 104. Some essential...
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