In re Callahan

254 A.D.2d 415, 678 N.Y.S.2d 741, 1998 N.Y. App. Div. LEXIS 11132

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 1998
• Status: Published

Opinion

Motion by the appellant for reargument of an appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Kassoff, J.), dated May 10, 1996, which was determined by decision and order of this Court dated May 27, 1997.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is,

Ordered that the motion is granted, and upon reargument it is,

Ordered that the decision and order of this Court dated May 27, 1997 (239 AD2d 574) is recalled and vacated, and the following decision and order is substituted therefor.

In a proceeding pursuant to Mental Hygiene Law article 81, the Suffolk County Department of Social Services .appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Kassoff, J.), dated May 10, 1996, as granted the petitioner’s application to establish a supplemental needs trust with certain settlement proceeds before satisfying a Medicaid lien.

Ordered that the order and judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and that branch of the petitioner’s application which was to establish a supplemental needs trust with certain settlement proceeds before satisfying a Medicaid lien is denied.

Since the entire amount of the settlement proceeds is available to satisfy the Medicaid hen, the petitioner’s application to establish a supplemental needs trust with those proceeds before satisfying the lien must be denied (see, Calvanese v Calvanese, 250 AD2d 564; see also, Cricchio v Pennisi, 90 NY2d 296). Rosenblatt, J. P., Thompson, Sullivan and Friedmann, JJ., concur.