46 A.D.2d 888 | N.Y. App. Div. | 1974
In an action to recover damages for personal injuries sustained by the infant plaintiff, etc., the Department of Social Services of the County of Suffolk (hereafter the Department) appeals from an order of the Supreme Court, Suffolk County, entered September 25, 1973, which granted plaintiffs’ motion to disallow a lien claimed by the Department. Order affirmed, without costs. The infant plaintiff, Anthony Marsh, was struck by an automobile on October 30, 1971, when he was seven years of age. His mother was separated from his father and she was receiving public assistance. Anthony was hospitalized for about six weeks, with his right leg in traction. He left the hospital with a cast on his leg. The cast was removed in February, 1972 and he last saw his doctor for his injuries in November, 1972, more than a year after the accident. Defendants’ insurance coverage was for $10,000, so a settlement offer of $9,500 was accepted. The papers composing the settlement compromise were drawn up and included the lien of plaintiffs’ attorneys and certain physicians’ bills. The mother did not ask for moneys for hospital or medical expenses in her affidavit in support of the compromise, because she had paid none, notwithstanding the claim she made therefor in her derivative cause of action. After the papers were drawn, the Department asserted a lien of $2,100.66, the amount of hospital payments it had made. The lien was asserted pursuant to section 104-b of the Social Services Law. Special Term granted plaintiffs’ motion to disallow the lien (Marsh v. La Marco, 75 Mise 2d 139) and the order of compromise directed payment of $3,166.66 to plaintiffs’ attorneys, $25 to one doctor and $1,500 to another doctor (reduced voluntarily by this doctor from $2,300) and directed that the balance, $4,808.34, be placed in trust for Anthony. In disallowing the lien, Special Term determined that none of the Department’s contentions confronted or explained the clear intention of the Legislature, to wit, to exempt an infant’s property from recovery. At the times here in question, subdivision 2 of section 104 of the Social Services Law provided: “ No tight of action shall accrue against an infant by reason of the assistance