Mercado v. Institute for Urban Family Health

Appellate Division of the Supreme Court of New York

Mercado v. Institute for Urban Family Health

39 A.D.3d 409, 835 N.Y.S.2d 87

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 24, 2007

StatusPublished

Cited by3 cases

This text of 39 A.D.3d 409 (Mercado v. Institute for Urban Family Health) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mercado v. Institute for Urban Family Health, 39 A.D.3d 409, 835 N.Y.S.2d 87 (N.Y. Ct. App. 2007).

Pincite

Opinion

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered January 10, 2006, which, inter aha, granted plaintiff’s motion insofar as it sought renewal, but upon renewal adhered to the prior order granting defendant’s motion for summary judgment and denying plaintiffs motion for leave to amend the complaint, unanimously modified, on the law, to deny defendant’s motion for summary judgment, and otherwise affirmed, without costs.

Defendant was not entitled to summary judgment dismissing plaintiffs cause of action to recover the extraordinary expenses of caring for a child with Down’s Syndrome. The contention, now reiterated by defendant, that such expenses may not be recovered from a tortfeasor when they are covered by government aid programs, was specifically rejected by this Court in Germosen v Gupta (237 AD2d 121 [1997]), where we held that “[t]he availability of Medicaid should not operate to preclude recovery against the tortfeasor any more than the availability of health insurance under similar circumstances.” We noted as well that “such cost should not be borne as a public expense [410]*410where judgment may be recovered against the culpable party” (id.). Defendant misconstrues Germosen to permit recovery only where some extraordinary expenses are not covered by government aid. Moreover, even if defendant’s construction of Germosen were correct, summary judgment dismissing plaintiffs claim for extraordinary expenses would still be inappropriate given the admissible evidence showing that the services, treatments and equipment that are and will be necessary for plaintiffs daughter’s care are not completely covered by available government programs.

We have considered, and reject, defendant’s arguments to the effect that plaintiffs appeal is not properly before us. Concur— Andrias, J.P., Saxe, Marlow, Nardelli and Williams, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered January 10, 2006, which, inter aha, granted plaintiff’s motion insofar as it sought renewal, but upon renewal adhered to the prior order granting defendant’s motion for summary judgment and denying plaintiffs motion for leave to amend the complaint, unanimously modified, on the law, to deny defendant’s motion for summary judgment, and otherwise affirmed, without costs.

Defendant was not entitled to summary judgment dismissing plaintiffs cause of action to recover the extraordinary expenses of caring for a child with Down’s Syndrome. The contention, now reiterated by defendant, that such expenses may not be recovered from a tortfeasor when they are covered by government aid programs, was specifically rejected by this Court in Germosen v Gupta (237 AD2d 121 [1997]), where we held that “[t]he availability of Medicaid should not operate to preclude recovery against the tortfeasor any more than the availability of health insurance under similar circumstances.” We noted as well that “such cost should not be borne as a public expense [410]*410where judgment may be recovered against the culpable party” (id.). Defendant misconstrues Germosen to permit recovery only where some extraordinary expenses are not covered by government aid. Moreover, even if defendant’s construction of Germosen were correct, summary judgment dismissing plaintiffs claim for extraordinary expenses would still be inappropriate given the admissible evidence showing that the services, treatments and equipment that are and will be necessary for plaintiffs daughter’s care are not completely covered by available government programs.

We have considered, and reject, defendant’s arguments to the effect that plaintiffs appeal is not properly before us. Concur— Andrias, J.P., Saxe, Marlow, Nardelli and Williams, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

39 A.D.3d 409, 835 N.Y.S.2d 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercado-v-institute-for-urban-family-health-nyappdiv-2007.

Opinion

Related

Cite This Page — Counsel Stack