Montgomery v. Ramos

44 A.D.2d 811, 355 N.Y.S.2d 607, 1974 N.Y. App. Div. LEXIS 4950

Opinion

Order, Supreme Court, Bronx County, entered on or about June 19, 1973, vacating appellant’s lien, unanimously reversed, on the law, without costs and without disbursements, the motion denied, the vacatur of the lien stricken and the case remanded to Trial Term, Supreme Court, Bronx County, for further proceedings consistent herewith.. The infant son of an indigent widow was struck by an uninsured vehicle. The expenses of his care in a city hospital, allegedly aggregating $2,152.32, were paid by the city under the Medicaid program. An action brought by the mother and on behalf of the infant was settled at a pretrial conference for the sum of $9,000. Thereafter, the infant’s counsel was notified of appellant’s lien claim. Respondents’ motion to vacate the lien was granted below on the ground that it was not enforceable against the infant’s recovery. We have taken note of the conflicting lower court decisions interpreting subdivision 2 of section 104 and section 104-b of the Social Services Law (see, e.g., Praylow v. Maklansky, N. Y. L. J., April 2, 1974, p. 17, col. 4 and cases cited therein). However, we believe resolution of the question may depend on whether or not the settlement included reimbursement for medical expenses incurred. The record before us does not disclose such fact. Accordingly, we remand for a review of the settlement proceedings, at which time the reasonableness of the asserted lien may also be determined. Concur—Markewich, J. P., Murphy, Steuer, Tilzer

and Capozzoli, JJ.