Mendelson v. Transport of New Jersey

• Decision Date: 25 November 1985
• Citation: 113 A.D.2d 202,495 N.Y.S.2d 973
• Parties: Schmuel MENDELSON, Appellant, v. TRANSPORT OF NEW JERSEY, et al., Defendants, Commissioner of Social Services, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 973

495 N.Y.S.2d 973

113 A.D.2d 202

Schmuel MENDELSON, Appellant, v. TRANSPORT OF NEW JERSEY, et al., Defendants Commissioner of Social Services, Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 25, 1985.

Allen Fischer, Brooklyn, for appellant.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Michael Gage and Fay Leoussis of counsel), for respondent.

Before LAZER, J.P., and GIBBONS, BRACKEN and LAWRENCE, JJ.

LAWRENCE, Justice.

The instant appeal involves the right of a social services official to recover from a recipient of public assistance the cost of such assistance received by the recipient and his wife and minor children, pursuant to an assignment of the proceeds of a settlement of the recipient's personal injury action. We agree with Special Term's determination that the respondent, the Commissioner of Social Services of the City of New York, is entitled to recover under the assignment in the instant case, and, accordingly, there should be an affirmance.

I.

The pertinent facts are not in dispute. Plaintiff-appellant, Schmuel Mendelson, his wife, and their four minor children became recipients of public assistance in or about March 1970. They received assistance until April of 1977.

On or about September 23, 1973, the appellant sustained personal injuries as the result of an automobile accident. A negligence action was thereafter commenced against the defendants Transport of New Jersey and Saje Biller. On July 2, 1974, the appellant and his wife executed an "Assignment of Proceeds of Lawsuit" in favor of the respondent, the Commissioner of Social Services of the City of New York, for all the public assistance furnished on behalf of the appellant and his dependents, from "the date of the first issuance of the aforementioned assistance and care to the date that such assistance and care are finally discontinued". In March of 1977, the appellant settled the negligence action for $300,000.

Thereafter, the respondent asserted his claim under the assignment. While a 1978 court order, inter alia, referred the assignment claim for a full trial to determine the correct amount to be paid pursuant to the assignment, in September of 1980, the appellant and the respondent entered into an agreement with respect to the amount of the respondent's claim. It was stipulated that the total assistance rendered to the appellant and his dependents from March 1970 to April 1977 was approximately $44,000. This amount specifically excluded any sums spent for medical costs, reimbursement for such sums having been waived by the respondent. It was further agreed that each member of the family received approximately $7,000. On consent of the parties, the total sum in dispute was deposited in an interest-bearing bank certificate of deposit pending the disposition of the respondent's claim.

The respondent thereafter moved for summary judgment, based upon the assignment and the parties' stipulation, seeking to recover the entire sum on deposit, plus accrued interest. The respondent maintained that the requested relief was authorized pursuant to the assignment and Social Services Law § 104(1) which provides, in pertinent part:

"A services] official may bring action or proceeding against a person discovered to have real or personal property * * * if such person, or any one for whose support he is or was liable, received assistance and care during the preceding ten years, and shall be entitled to recover up to the value of such property the cost of such assistance or care".

The appellant challenged the respondent's claim to the public assistance paid on behalf of his wife and minor children, alleging, in pertinent part, that such sums were not recoverable from moneys received by him as a result of the personal injury action and that "with or without an assignment", the respondent was only entitled to the moneys paid over to the appellant for his own assistance from the date of the injury to the time that he recovered the proceeds of his personal injury claim.

Special Term (Aronin, J.), granted the respondent's motion in its entirety. In its decision dated July 30, 1982, the court specifically held that the respondent was entitled to relief pursuant to (1) Social Services § 104(1) which allowed recovery from a recipient of all public assistance furnished both to him and to " 'any one for whose support he is or was liable' ", and (2) the assignment, which, under Social Services Law § 104-b(11), allowed the respondent " 'to recover under such assignment the total amount of assistance and care for which such assignment was made' ".

II.

In determining the primary issue on this appeal, to wit, the validity of the assignment by the appellant to respondent, we have undertaken to review pertinent common and statutory law leading to the present posture of the law regarding recoupment of public assistance from recipients and/or their responsible relatives.

At common law, a social services official could not recover from recipients properly granted public assistance, even from assets subsequently acquired by the recipient (see, City of Albany v. McNamara, 117 N.Y. 168, 22 N.E. 931; Baker v. Sterling, 39 N.Y.2d 397, 401, 384 N.Y.S.2d 128, 348 N.E.2d 584). However, at common law, a husband and father was liable for the support of his wife and minor children (see, Fuller v. Galeota, 271 App.Div. 155, 63 N.Y.S.2d 849; Matter of Figliola, 51 A.D.2d 671, 378 N.Y.S.2d 167, n* revd. 41 N.Y.2d 1072, 396 N.Y.S.2d 361, 364 N.E.2d 1132, on the dissenting mem at the App.Div.; Matter of Aspenleiter, 203 Misc. 109, 114 N.Y.S.2d 486; Matter of Black, 150 Misc. 433, 269 N.Y.S. 511). Thus, apart from any statutory authority, at common law, a social services official could recoup public assistance from the husband of a recipient thereof (Goodale v. Lawrence, 88 N.Y. 513), and from the father for assistance granted his minor children (Fuller v. Galeota, supra; Matter of Figliola, supra; Matter of Aspenleiter, supra; Matter of Black, supra ). Nevertheless, there was no enforceable common-law obligation requiring a wife to support her husband (Young v. Valentine, 177 N.Y. 347, 69 N.E. 643; Hodson v. Stapelton, 248 App.Div. 524, 290 N.Y.S. 570); parents to support adult children (Betz v. Horr, 250 App.Div. 457, 294 N.Y.S. 546, revd. on other grounds 276 N.Y. 83, 11 N.E.2d 548); grandparents to support grandchildren (Kinsey v. Lawrence, 100 N.Y.S.2d 597, 605); or children to support parents (Matter of Kane v. Necci, 245 App.Div. 1, 280 N.Y.S. 489, appeal dismissed 269 N.Y. 13, 198 N.E. 613). Accordingly, statutory authority was necessary to provide for the recoupment of public assistance from recipients, and to compel current support and recoupment from certain relatives of recipients of public assistance.

Pursuant to the Laws of 1784 (ch. 35), a social services official could seek current support from certain relatives, who were subject to a forfeiture for the failure to pay such support:

"That the father and grand father, mother and grand mother (being of sufficient ability) of any poor, lame, or decriped person or persons, whomsoever, not being able to maintain themselves, and becoming chargeable to any district within this State; and the children and grand children (being of sufficient ability) of every poor, old, blind, lame or impotent person, not being able to maintain themselves, and becoming chargeable as aforesaid, shall severally at his, her or their charges and expences, relieve and maintain every such poor person, as aforesaid, in such manner as the justice of the peace of the county, where such sufficient person shall dwell * * * shall order and direct, on pain of forfeiting and paying ten shillings for each person so ordered to be relieved, for every week he, she or they shall fail therein, to be sued for and recovered by the overseers of the poor of the district, to which such poor person or persons shall be chargeable for the use of the poor of the district, in the manner herein before directed, with respect to costs and charges upon an appeal".

Statutory authority for the recoupment from recipients of public assistance was enacted by the Laws of 1901 (ch. 664), which added section 57 to the Poor Law (L.1896, ch. 225). That section read, in pertinent part, as follows:

"If it shall at any time be ascertained that any person, who has been assisted by or received support from any town, city or county, has real or personal property, or if any such person shall die, leaving real or personal property, an action may be maintained * * * by the overseer of the poor * * * or the superintendent of the poor * * * against such person or his or her estate, to recover such sums of money as may have been expended * * * in the assistance and support of such person during the period of ten years next preceding such discovery or death".

In 1929, the Legislature enacted the Public Welfare Law, which re-enacted, in substance, the responsible-relative statute (L.1784, ch. 35) as sections 125 and 126 thereof, permitting actions to compel current support from certain enumerated relatives (L.1929, ch. 565). In addition, the 1929 law re-enacted section 57 of the Poor Law (set forth, in pertinent part, supra ) as section 128 and expanded that section to permit recovery of public assistance from discovered real or personal property of responsible relatives, as well as recipients (L.1929, ch. 565).

In 1940, the Legislature repealed the Public Welfare Law, and enacted the Social Welfare Law (L.1940, ch. 619 § 18). Section 125 and 128 were re-enacted, in substance, as sections 101 and 104 of the Social Welfare Law (L.1940, ch. 619 § 10).

In 1953, the Legislature amended section 104 of the then Social Welfare Law to provide that a claim pursuant to that section against the estate of a recipient or responsible relative would not be barred or defeated because of lack of sufficiency of financial ability on the part of the...