Moore v. Nassau County Dept. of Public Transp.
| Decision Date | 28 June 1974 |
| Citation | 78 Misc.2d 1066,357 N.Y.S.2d 652 |
| Parties | Clarissa MOORE, Plaintiff, v. NASSAU COUNTY DEPT. OF PUBLIC TRANSPORTATION et al., Defendants. |
| Court | New York Supreme Court |
Reid & Alio, Huntington Station, for defendants Nassau County Dept. of Public Transp., James Williams and Hempstead Bus Corp.
Benjamin Purvin, Lake Success, for defendant Kiss.
Joseph Jaspan, County Atty., Nassau County, Mineola, for Nassau County Dept. of Social Services.
O'Regan & O'Reilly, Garden City, for defendants Hamner.
Jacob M. Shapiro, Freeport, for plaintiff.
A lien representing past public assistance payments may be satisfied from a recipient's money recovery in a personal injury action.
But, what happens where the recipient's aggregated grants represent payments for several family members' assistance and care? And are medical assistance payments resulting from general medicaid or a subsequent accident chargeable against the proceeds of the earlier accident?
Clarissa Moore was injured as a passenger in a bus accident on September 4, 1971. She brought this action to recover for her injuries, and, through her attorney, has negotiated a $9,000 settlement. Since the accident, Mrs. Moore, her husband Sammy, and her daughter Jo Anne received a total of $8,610.82 in public assistance, including both medical assistance and cash grants for basic needs, giving rise to a lien asserted now in that amount by the Nassau County Department of Social Services. When the full lien is applied against the $9,000 proposed settlement, less attorneys fees, nothing would be left to compensate Mrs. Moore for her pain and suffering. She was later injured in another bus accident, and a lawsuit to recover for those injuries is now pending.
Her attorney in this action has moved to fix the Social Services lien against the settlement sum in the first case, asserting that the $8,610.82 figure should be pared down.
In a hearing set by Mr. Justice Levine, Mrs. Moore and the Social Services Department, by stipulation, broke the figures down, and isolated the pertinent periods and assistance allocations. Three subdivisions appeared:
1. Past Assistance Chargeable to Plaintiff
Since the First Accident
Aid to Families With Dependent
Children (AFDC) between the first
and second accidents $1,086.66
AFDC after the second accident 459.25
Medical Assistnce (MA) for
injuries in first accident 1,230.18
---------
$2,776.09
All parties stipulate that this amount of the asserted lien is a valid charge against the settlement. The Court in principle accepts this stipulation with the reservation, explained more fully in the remainder of the opinion, that the MA portion be paid to the Social Services Department, not as a lien offset, but as an equitable reimbursement for medical services occasioned by this accident.
2. Assistance Attributable to Other Family Members
AFDC between accidents $2,173.34
AFDC after second accident 459.25
Moving Expenses of husband 210.00
---------
$2,842.59
All parties agree that this amount of the asserted lien is not a valid charge against Mrs. Moore's settlement. The Court accepts this agreement in full.
3. Disputed Medical Payments to Plaintiff
MA for injuries of second accident $1,631.16
General MA unrelated to accidents 1,360.98
---------
$2,992.14
The parties Disagree on this amount representing the balance of the asserted lien.
Social Services Law § 104--b(1) provides:
'If a recipient of public assistance and care shall have a right of action, suit, claim, counterclaim or demand against another on account of any personal injuries suffered by such recipient, then The public welfare official for the public welfare district providing such assistance and care Shall have a lien for such amount as may be fixed by the public official Not exceeding, however, the total amount of Such assistance and care furnished by such public welfare official On and after the date when such injuries were incurred'. (emphasis added).
Social Services Law § 104--b(13) provides that 'the public welfare official may in his discretion release to the injured person an amount not to exceed the cost of two years' maintenance from the lien herein created'. However, no guidelines are set forth for the exercise of this discretion.
The statutory lien is drastic in impact upon funds recoverable because of pain and suffering experienced, and for this reason has not been enforced against an injured infant recipient's recovery. See, e.g., Marsh v. La Marco, 75 Misc.2d 139, 351 N.Y.S.2d 253; see cases cited in Praylow v. Maklansky, N.Y.L.J., 4/2/74, p. 17, cols. 4--5. Nonetheless, the constitutionality of the statute as applied against adults has been upheld. Snell v. Wyman, 281 F.Supp. 853 (S.D.N.Y. 1968), affd. 393 U.S. 323, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969).
The Court approves of the division of the lien according to the amount of assistance actually attributable to Mrs. Moore herself. The wording of the statute refers to the assessable assistance and care rendered to the Recipient, not the recipient's family.
The case law, while to some degree split, is decidedly more favorably disposed to the equitable proposition that a lien for assistance provided which cuts down a person's ultimate personal injury recovery, should not include amounts for aid furnished to others even if related by blood or marriage. See, e.g., Romeo v. New York City Transit Auth., 73 Misc.2d 124, 341 N.Y.S.2d 176.
The Nassau County officials and plaintiff have commendably adopted this enlightened view and thusly obviated a dispute over most of the lien here.
Mrs. Moore contends, however, that her medical assistance attributable to illnesses other than the injury sustained in the first accident is not includable in the lien against the damage recovery from that accident.
Our analysis does not distinguish between the general medical assistance for ailments and injury treatment attributable to the second accident on which there has yet been no disposition. Both represent medical assistance debts unrelated to the instant accident.
Social Services Law § 104--b is silent on the term 'medical', while providing a statutory lien for all 'assistance and care'. Social Services Law § 369, subd. 1(a) expresses a legislative concern that the medical assistance provided not encumber the recipient's property, in the following terms:
'(N)o lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under this title, except pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual . . .'.
The medical assistance program in New York is federally funded and based upon Title XIX of the Social Security Act. The corresponding federal statutory shield of medical assistance recipients from liens is found in Section 1902(a) (18) of the Act, 42 U.S.C. § 1396a(a)(18), in terms almost identical to Social Services Law § 369.
Although neither statute defines what 'property' means, the federal regulations promulgated under the Social Security Act state:
'. . . the term 'property' includes not only the homestead but all personal and real property in which the recipient has a legal interest'. 45 C.F.R. § 249.70.
The nature of 'personal property' is not specified in the federal regulations, so we must look to the law of New York to ascertain whether claims for personal injury damages are 'personal property', immune from medical assistance liens.
A claim for personal injury is a chose in action which has a value. It is intangible, yet nonetheless personal property subject to encumbrances. See, UCC §§ 1--206, 8--319. The case law in New York unanimously holds that choses in action for personal injuries are personal property.
'(R)ights of action for damages for personal injuries . . . are choses in action and personal property'. In Re Walton's Estate (Trussell), 20 A.D.2d 386, 389, 247 N.Y.S.2d 21, 25; Mnich v. Amer. Radiator Co., 263 App.Div. 573, 34 N.Y.S.2d 16, affd. 289 N.Y. 681, 45 N.E.2d 333; Citron v. Mangel Stores Corp., 50 N.Y.S.2d 416, affd. 268 App.Div. 905, 51 N.Y.S.2d 754, appeal denied, 268 App.Div. 978, 52 N.Y.S.2d 578; see, 47 N.Y.Jur., Property, § 5.
Accordingly, federal law prevents a medical assistance recipient's claims for personal injury from being subject to liens. The purpose of this shield is to give such persons a greater opportunity to eventually become financially independent and to avoid encumbering their property with liens for medical aid furnished. Cf. General Obligations Law § 13--101(1); Silinsky v. State-Wide Ins. Co., 30 A.D.2d 1, 6--7, 289 N.Y.S.2d 541, 547--549.
New York, however, departs from federal law in the last sentence of Social Services Law § 369, added only months after the State enactment of the federally inspired lien prohibition, which appears to contradict 45 C.F.R. § 249.70:
'Nothing contained in this subdivision shall be construed to alter or...
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