Lainez, Matter of

• Decision Date: 17 February 1981
• Citation: 435 N.Y.S.2d 798,79 A.D.2d 78
• Parties: In the Matter of Mary LAINEZ, deceased. Jeannette GAHRMAN, as administratrix et al., Appellants, v. DEPARTMENT OF SOCIAL SERVICES OF the CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 798

435 N.Y.S.2d 798

79 A.D.2d 78

In the Matter of Mary LAINEZ, deceased.

Jeannette GAHRMAN, as administratrix et al., Appellants, v. DEPARTMENT OF SOCIAL SERVICES OF the CITY OF NEW YORK, Respondent.

Supreme Court, Appellate Division, Second Department.

Feb. 17, 1981.

J. Bruce Byrne, New York City, for appellant Jeannette Gahrman, as administratrix.

Duer & Taylor, New York City, for appellant United States Fidelity and Guaranty Co., Surety on the Administration Bond (Frank C. McLaughlin, Jr., New York City, of counsel).

Allen G. Schwartz, Corp. Counsel, New York City (Edward F.X. Hart and Ronald E. Sternberg, New York City, of counsel), for respondent.

Before HOPKINS, J. P., and LAZER, COHALAN and WEINSTEIN, JJ.

LAZER, Justice.

The decedent, a 17-year-old woman, was killed by her husband who then committed suicide, thus leaving her parents as her only survivors. Since the decedent's father subsequently was disqualified as a distributee by a Special Referee pursuant to EPTL 4-1.4 for having abandoned and refused to support the decedent as an infant, her mother, Jeannette Gahrman, became the sole remaining distributee and was appointed administratrix. The proceeds of a life insurance policy constituted the only asset of the estate.

The account filed by the administratrix, which showed a net estate of $39,000, included Schedule D which demonstrated that no claim of creditors, contingent or otherwise, had been presented. Seeking the recovery of $41,666.92 which had been paid to Mrs. Gahrman and her children during the period 1967-1977, the Department of Social Services of New York City (Social Services) then moved to intervene in the accounting proceeding "as a creditor of the distributee JEANNETTE GAHRMAN." Social Services contended that pursuant to the provisions of sections 101, 103 and 104 of the Social Services Law, it was a creditor of Mrs. Gahrman and therefore entitled to obtain reimbursement from her as distributee. The Acting Surrogate responded by granting Social Services leave to intervene as "a possible creditor" of the distributee.

After a verified bill of objections to the administratrix's account had been filed by Social Services, she and the surety on the administration bond, United States Fidelity and Guaranty Company (the surety), moved for summary judgment dismissing the Social Services claim on the ground that the Surrogate's Court lacked subject matter jurisdiction to hear the claim because it was made by one living person (the corporate City of New York) against another living person. Social Services replied that under SCPA 201 and 210 the Surrogate's Court has jurisdiction to hear "all matters relating to the affairs of decedents," including proceedings for the recovery of funds previously paid to public assistance recipients. The Surrogate denied the motion to dismiss and the administratrix and the surety appealed. We believe that reversal is mandated.

Although Social Services is a "preferred creditor" of Jeannette Gahrman under subdivision 1 of section 104 of the Social Services Law, in the circumstances of this case it has no parallel right of action against the decedent or her estate (see Social Services Law, § 104, subd. 2). Since the decedent was an infant when she died and had no property or funds in excess of her reasonable requirements at the time she was receiving assistance, no claim for recovery of that assistance could be asserted against her or her estate by Social Services (see Baker v. Sterling, 39 N.Y.2d 397, 384 N.Y.S.2d 128, 348 N.E.2d 584; Matter of Colon, 83 Misc.2d 344, 372 N.Y.S.2d 812). Therefore, the claim was interposed solely against decedent's mother in her individual capacity and the narrow question before us is whether the Surrogate's Court has the power to adjudicate such a claim. We conclude that it does not.

The Surrogate's Court is a court of limited jurisdiction and possesses only such powers as are conferred upon it by statute (Matter of Hyams, 237 N.Y. 211, 142 N.E. 589; People ex rel. Safford v. Surrogate's Ct. of County of Genessee, 229 N.Y. 495, 128 N.E. 890; Matter of Martin, 211 N.Y. 328, 105 N.E. 546; Matter of Thompson, 184 N.Y. 36, 76 N.E. 870; Matter of D.D., 64 A.D.2d 898, 408 N.Y.S.2d 104). The essence of the objections and claim asserted is that Jeannette Gahrman, a distributee, owes money to the objector. But the power of the Surrogate's Court relates to matters affecting estates of decedents and not to independent matters involving controversies between living persons (Matter of Simonson, 271 App.Div. 420, 65 N.Y.S.2d 620; Matter of Heinze, 179 App.Div. 453, 165 N.Y.S. 1017; see Schoelles v. Zausmer, 2 A.D.2d 979, 157 N.Y.S.2d 190). The only proper parties before the Surrogate on an accounting are creditors or those claiming to be creditors of the decedent (Matter of Pluym, 195 App.Div. 565, 186 N.Y.S. 904). Here, by the terms of their own motion and the Surrogate's order, Social Services claims only to be a creditor of the sole distributee. It is well settled that the Surrogate's Court has no jurisdiction over a claim by a creditor against a distributee or...