| Matter of Swingearn |
| 2009 NY Slip Op 01124 [59 AD3d 556] |
| February 10, 2009 |
| Appellate Division, Second Department |
| In the Matter of Pearl Swingearn. Nassau County Department ofSocial Services, Appellant; Richard L. Farley et al., Respondents. |
—[*1] Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, LakeSuccess, N.Y. (Allan E. Silver of counsel), for respondent Highland Gardens Care Center ofGreat Neck.
In a guardianship proceeding pursuant to Mental Hygiene Law article 81, in which RichardL. Farley, guardian of the person and property of Pearl Swingearn, petitioned to settle the finalaccount, the Nassau County Department of Social Services appeals, as limited by its brief, fromso much of an order of the Supreme Court, Nassau County (Marano, J.), dated March 6, 2007, as(a) granted the guardian's motion, in effect, for leave to renew and reargue his prior motion tosettle his final account, which was determined in an order dated November 3, 2006 approving theguardian's fee and, upon renewal and reargument, awarded the guardian additionalcompensation, and (b) granted the cross motion of Highfield Gardens Care Center of Great Neckfor leave to renew and reargue its prior cross application to declare the priority of its claim forreimbursement for unpaid medical assistance over that of the Nassau County Department ofSocial Services, which had been denied in the order dated November 3, 2006, and, upon renewaland reargument, granted the cross application.
Ordered that the order dated March 6, 2007 is modified, on the law and the facts, by deletingthe provision thereof, upon renewal and reargument, granting the cross application of HighlandGardens Care Center of Great Neck to declare the priority of its claim, and substituting therefor aprovision, upon renewal and reargument, adhering to so much of the order dated November 3,2006 as denied the cross application and determined that the claim of the Nassau CountyDepartment of Social Services has priority over the claim of Highfield Gardens Care Center[*2]of Great Neck; as so modified, the order dated March 6, 2007is affirmed insofar as appealed from, without costs or disbursements.
A motion for leave to renew and reargue is addressed to the sound discretion of the SupremeCourt (see Mi Ja Lee v Glicksman,14 AD3d 669 [2005]; Daniel Perla Assoc. v Ginsberg, 256 AD2d 303 [1998];Loland v City of New York, 212 AD2d 674 [1995]). The Supreme Court did notimprovidently exercise its discretion in granting the motion of Richard L. Farley, guardian of theperson and property of Pearl Swingearn, denominated as one to resettle the final account butwhich was one, in effect, for leave to renew and reargue his prior motion to settle his finalaccount, and the cross motion of Highfield Gardens Care Center of Great Neck (hereinafter theNursing Home) for leave to renew and reargue its prior cross application to declare the priorityof its claim over that of the Nassau County Department of Social Services (hereinafter DSS).
The Supreme Court did not improvidently exercise its discretion in awarding the guardianadditional compensation for legal services rendered (cf. Matter of Marion B., 11 AD3d 222 [2004]).
However, the Supreme Court should have adhered to its original determination that the claimby DSS for medical assistance incorrectly paid has priority over the Nursing Home's claim forexpenses incurred in the incapacitated person's care. Pursuant to Social Services Law §104 (1), a "public welfare official," under whose authority public assistance has been provided toan individual who is later discovered to have property, is "deemed a preferred creditor" of theindividual to whom such assistance has been provided and may "bring action or proceeding"against such individual on the theory that the assistance was furnished under "an impliedcontract" (Social Services Law § 104 [1]; see Hoke v Ortiz, 83 NY2d 323 [1994],cert denied 513 US 865 [1994]). This statute was enacted in order to provide publicwelfare entities such as DSS with a preference over the "general creditors" of a recipient ofpublic assistance (see 1964 NY Legis Ann, at 322; Matter of Warren, 53 NY2d118, 122 [1981]). The right of DSS to recover payment of Medicaid benefits is conferred bystatute (see Social Services Law §§ 104, 106-b), and "the statutory schemecontemplates that, when needed, benefits such as those paid for [the incapacitated person's]residential nursing care are to be provided as speedily as possible, with further investigation andpossible liability for reimbursement determined later on" (Delaware County Dept. of Social Servs. v Pontonero, 31 AD3d999, 1000 [2006]; see Oxenhorn v Fleet Trust Co., 94 NY2d 110, 116-117 [1999]).
Contrary to the Nursing Home's contention, DSS is not required to bring a separate action orproceeding to recoup Medicaid benefits (see Social Services Law §§ 104,106-b). It was sufficient to preserve its claim by asserting it in this guardianship proceedingnotwithstanding the incapacitated person's subsequent death (see e.g. Matter of Warren,53 NY2d 118 [1981]). Moreover, no formal determination or fair hearing is required before DSSmay seek to recoup what it deems to be incorrectly paid medical assistance under Social ServicesLaw § 104 (see Matter of Gonzalez, 154 Misc 2d 633, 635 [1992]).
Since DSS became a preferred creditor upon asserting its claim in this proceeding, it waserror to afford priority to the Nursing Home's claim. The Nursing Home, which has not reducedits claim to judgment (cf. Matter of Pierce, 106 AD2d 892 [1984]), is merely a generalcreditor over which DSS has priority (see Matter of Snell, 194 Misc 2d 695 [2003];Social Services Law § 104 [1]). Fisher, J.P., Dillon, Miller and Eng, JJ., concur.