Pasciuta v. Forbes

• Decision Date: 03 June 1993
• Citation: 598 N.Y.S.2d 395,190 A.D.2d 375
• Parties: Linda PASCIUTA et al., Appellants, v. Robert D. FORBES et al., Defendants; Sullivan County Department of Social Services, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 395

598 N.Y.S.2d 395

190 A.D.2d 375

Linda PASCIUTA et al., Appellants, v. Robert D. FORBES et al., Defendants Sullivan County Department of Social Services, Respondent.

Supreme Court, Appellate Division Third Department.

June 3, 1993.

Gary Waldman, Monticello, for appellants.

Michael C. Ross, Liberty, for respondent.

Before WEISS, P.J., and MIKOLL, YESAWICH, CREW and CASEY, JJ.

CREW, Judge.

Appeal from an order of the Supreme Court (Williams, J.), entered February 18, 1992 in Sullivan County, which denied plaintiffs' motion to vacate a lien in favor of the Sullivan County Department of Social Services.

At various times between 1987 and 1991, plaintiff Linda Pasciuta applied for and received public assistance benefits from the Sullivan County Department of Social Services (hereinafter DSS). In March 1991, Pasciuta was injured in an automobile accident; Pasciuta and her spouse (hereinafter collectively referred to as plaintiffs where appropriate) thereafter commenced this personal injury action, which settled in October 1991 for $10,000. In the interim, on or about July 23, 1991, DSS served Pasciuta's attorney with a notice of lien for public assistance and care on claims and suits and subsequently set the amount of the lien at $3,476.79. Plaintiffs thereafter moved to vacate the lien and requested, in the event that Supreme Court determined that the lien was enforceable, that DSS be directed to pay a pro rata share of counsel fees. Supreme Court denied plaintiffs' motion in its entirety and this appeal ensued.

At common law, the recipient of public assistance was not obligated to repay, and hence a public welfare official was not authorized to recover, sums properly expended on the recipient's behalf (see, Baker v. Sterling, 39 N.Y.2d 397, 401, 384 N.Y.S.2d 128, 348 N.E.2d 584; Mendelson v. Transport of N.J., 113 A.D.2d 202, 204, 495 N.Y.S.2d 973 lv denied 68 N.Y.2d 602, 505 N.Y.S.2d 1026, 496 N.E.2d 239). Legislation authorizing public welfare officials to recover amounts paid to public assistance recipients has existed since 1901 (see, L. 1901, ch. 664) and is presently found in Social Services Law § 104(1) which provides, in pertinent part, that "[a] public welfare official may bring [an] 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" (Social Services Law § 104[1]. This right of recoupment is explicitly based upon a theory of implied contract (see, Social Services Law § 104[1]; see also, Baker v. Sterling, supra, 39 N.Y.2d at 410, 384 N.Y.S.2d 128, 348 N.E.2d 584 [Fuchsberg, J., concurring]; Kinsfather v. Grueneberg, 47 A.D.2d 789, 791, 365 N.Y.S.2d 903; Fulton County Natl. Bank & Trust Co. v. Call, 117 Misc.2d 39, 40, 457 N.Y.S.2d 367).

In 1964 the Legislature, in an apparent attempt to streamline the recoupment process, enacted a provision empowering local agencies to establish a lien in personal injury actions brought by the recipient of public assistance (see, L.1964, ch. 382, as renum by L.1971, ch. 550, § 1). Social Services Law § 104-b(1) provides, in relevant part, as follows:

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 welfare 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 (Social Services Law § 104-b[1] (emphasis supplied).

The Court of Appeals has instructed that the lien statute is purely a procedural device and in no way expands the scope of the remedy available under Social Services Law § 104 (see, Matter of Thurston v. Durose, 76 N.Y.2d 683, 686, 563 N.Y.S.2d 37, 564 N.E.2d 647; Baker v. Sterling, 39 N.Y.2d 397, 404-405, 384 N.Y.S.2d 128, 348 N.E.2d 584, supra; see also, Kinsfather v. Grueneberg, 47 A.D.2d 789, 791, 365 N.Y.S.2d 903 supra; Fulton County Natl. Bank & Trust Co. v. Call, 117 Misc.2d 39, 40, 457 N.Y.S.2d 367, supra; Aubin v. Russo, 99 Misc.2d 783, 785, 417 N.Y.S.2d 196; Matter of Colon, 83 Misc.2d 344, 354, 372 N.Y.S.2d 812).

Thus, the statutory scheme offers public welfare officials two options: to recover directly in an action commenced against the recipient pursuant to Social Services Law § 104(1) or to recover indirectly by enforcing a lien in the recipient's personal injury action in accordance with Social Services Law § 104-b(1) (see, Baker v. Sterling, supra, 39 N.Y.2d at 404-405). ¹ Here, it would appear that DSS has blurred the distinction between these methods of recovery by attempting to file a lien based upon an alleged assignment received from Pasciuta. This DSS cannot do.

A lien filed in accordance with Social Services Law § 104-b(1...