Marsh v. La Marco

• Decision Date: 07 September 1973
• Citation: 351 N.Y.S.2d 253,75 Misc.2d 139
• Parties: Anthony MARSH, an infant, by Anita Marsh, as mother and natural guardian, and Anita Marsh, Individually, Plaintiffs, v. Margaret La MARCO and Vincent La Marco, Defendants.
• Court: New York Supreme Court

Page 253

351 N.Y.S.2d 253

75 Misc.2d 139

Anthony MARSH, an infant, by Anita Marsh, as mother and natural guardian, and Anita Marsh, Individually, Plaintiffs, v. Margaret La MARCO and Vincent La Marco, Defendants.

Supreme Court, Special Term, Suffolk County, Part I.

Sept. 7, 1973.

Crowe, McCoy & Agoglia, Garden City, Suffolk County Department of Social Services, Bay Shore, for plaintiffs.

Nugent, Connolly & Woods, Williston Park, for defendants.

LEON D. LAZER, Justice.

The infant plaintiff in this action has arrived at a settlement of his negligence case and moves to disallow a lien aserted by the Commissioner of Social Services of the Suffolk County Social Services District ('Social Services') and for approval of a proposed order of compromise. The motion is opposed by the Commissioner.

The plaintiff, now nine years of age, was struck by a vehicle on October 30, 1971 while crossing the street. He was removed to the Brookhaven Memorial Hospital where his injuries were diagnosed as a fracture of the right femur, lacerations, contusions and a concussion. He was placed in traction for six weeks and thereafter wore a cast for another two months. Recovery appears good although the child still has some atrophy and weakness of the right lower extremity. Special damages are substantial. The treating physician's bill is $2,325.00 and the hospital bill appears to have totalled $5,291.27, of which $3,190.61 was paid through the father's major medical insurance policy and the balance of $2,100.66 was paid by Social Services. It is the Commissioner's lien in the latter amount which is in issue here. There is no outstanding hospital lien.

The liability insurance policy covering the defendants has minimum limits of $10,000/$20,000 and the settlement offer is $9,500.00. The plaintiff's attorneys assert that under the circumstances approval of the compromise application is in the infant's interest.

The infant's parents appear to be living apart and at the time of the injury the child was residing with his mother who was receiving welfare assistance from Social Services. Although no hospital bill was ever rendered to the mother, after the infant agreed upon a settlement with the defendants the Commissioner filed a lien for medical assistance pursuant to Section 104--b of the Social Services Law in the amount of $2,100.66.

The Commissioner opposes the motion to disallow his lien with a three-fold argument: (1) the amount of special damages is part of the settlement value of the case and since the infant is being compensated for this value he should reimburse Social Services for the amount it expended to defray those damages; (2) if Social Services had not paid the hospital bill, the hospital would have filed a lien and the infant would have been required to satisfy that; (3) payment of the hospital bill was actually the obligation of the parents who would have been reimbursed had they paid it. Social Services, which assumed the parent's burden, is similarly entitled to be recompensed.

The Commissioner's lien is statutory. It arises from § 104--b of the Social Services Law which provides that public welfare officials shall have a lien on monies recovered in personal injury suits by welfare recipients for the cost of 'public assistance and care' rendered at or after the date of the injury. Section 104, subd. 1 of the same law provides a public welfare official with a right of action against a person discovered to have real or personal property if such person received assistance during the preceding ten years. Section 104, subd. 2 contains a qualification with respect to infants' property:

'No right of action shall accrue against an infant by reason of the assistance or care granted to him unless at the time it was granted the infant was possessed of money and property in excess of his reasonable requirements, taking into account his maintenance, education, medical care and other factors applicable to his condition.'

It is a settled rule of statutory construction that where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation (McKinneys Statutes, Book 1, § 75), and construction is not the business of a court (People ex rel. New York C. & H.R.R. Co. v. Woodbury, 208 N.Y. 421, 102 N.E. 565). Nevertheless, the court takes judicial notice of the fact that Social Services liens are sometimes still enforced against infant tort recoveries in this State, resulting in unequal protection for the children whose funds are thus depleted. Therefore it is time to construe the statute in the hope that appellate review will establish a consistency in judicial policy.

Under the common law there was no right of recovery of assistance given to the poor (Graham: Public Assistance: The Right to Receive: The Obligation to Repay; 43 N.Y.U.L.Rev. 451, 478) because such assistance was in the nature of charity to which the recipient was legally entitled (Selectmen v. McGennes, N.Chip. 45 (Vt., 1790) ¹ and no obligation to repay could be imposed upon him (City of Albany v. McNamara, 117 N.Y. 168, 22 N.E. 931 (1889)). Not until 1896 were welfare officials in New York granted the right to recover assistance (L.1896, c. 225). ² The language of Social Services Law § 104 makes it clear that the New York recovery statute is based upon implied contract (In re Black's Estate, 150 Misc. 433, 269 N.Y.S. 511) although the doctrine of absolute liability has some support (Trussell v. Kostiw, 35 Misc.2d 60, 229 N.Y.S.2d 263; Matter of Lang, 242 App.Div. 781, 274 N.Y.S. 427). Sections 104 and 104--b are in derogation of the common law as it relates to contracts because they violate the rule that performance of a legal duty cannot furnish consideration for an executory promise by another (Weed v. Spears, 193 N.Y. 289, 86 N.E. 10; Olmstead v. Latimer, 158 N.Y. 313, 53 N.E. 5; Vanderbilt v. Schreyer, 91 N.Y. 392) and the rule that a contract cannot be implied in fact where the facts are inconsistent with its existence (Miller v. Schloss, 218 N.Y. 400, 113 N.E. 337). The Commissioner has a legal duty to furnish medical assistance to persons eligible therefor (Social Services Law § 365). By its recovery statute the state exacts either a promise of recovery from its welfare recipients or it imposes an absolute liability on them. This establishment of a new cause of action in derogation of the common law commands strict construction of the statute involved (Berger v. City of New York, 260 App.Div. 402, 22 N.Y.S.2d 1006, aff'd 285 N.Y. 723, 34 N.E.2d 894). Such construction mandates that § 104, subd. 2 (precluding recovery from an infant except under stated circumstances) be applied to the lien authorized under § 104--b. The two sections must be read In pari materia (Morgan v. Hedstrom, 164 N.Y. 224, 58 N.E. 26) for it is settled doctrine that when words of a statute are free from ambiguity the language will be given its commonly understood meaning (Common Council of City of Gloversville v. Town Bd. of Town of Johnstown, 37 A.D.2d 459, 327 N.Y.S.2d 28).

The cases construing § 104, subd. 2, have held consistently that it precludes recovery of expenditures for 'necessaries' made at a time when the infant had no excess funds (See Galante v. Doe, 68 Misc.2d 295, 326 N.Y.S.2d 199; In re Estate of Taff, 61 Misc.2d 602, 306 N.Y.S.2d 849; Application of Woods, 32 Misc.2d 745, 222 N.Y.S.2d 903). 'Necessaries' as a word of art includes medical and hospital expenses (In re Burt's Will, 160 Misc. 218, 289 N.Y.S. 875, mod., 254 App.Div. 584, 3 N.Y.S.2d 70; Ross v. Fisher, 223 App.Div. 342, 227 N.Y.S. 743; Potter v. Thomas, Sup., 164 N.Y.S.2d 923). Social Services Law § 363 defines medical assistance as a 'necessity'. ³

It is an inescapable conclusion that § 104, subd. 2, precludes enforcement of the Commissioner's lien against an infant in these circumstances. This conclusion, if not its reasoning, is supported by other Nisi prius determinations (See Ibarra v. Fusco, N.Y.L.J. 1/12/73, p. 17, col. 7; Collins v. Ruiz, N.Y.L.J. 3/23/73, p. 17, col. 5; Nieves v Mundera, N.Y.L.J. 11/29/72, p. 19, col. 2; Galante v. Doe, Supra). Nevertheless, the somewhat procrustean contentions of the Commissioner must be examined.

The theory that the infant will be reimbursed for his hospital bill by the defendants and should in turn repay Social Services ignores both the serious injuries in this case and the magnitude of the special damages. The latter approach in total amount that of the entire settlement and certainly exceed the net proceeds to be received by the infant. The settlement was influenced more by insurance policy limitations than anything else. It was made before any lien was filed by the Commissioner and no hospital lien was ever filed. Reimbursement of the Commissioner would impose the cost of the attorney's fees for the recovery of the amount due upon the child (See Glazer v. Department of Hospitals of City of N.Y., 2 Misc.2d 207, 155 N.Y.S.2d 414 for a discussion of the injustice of such a result).

The Commissioner's assertion that his lien should be enforced...