Woodhouse v. McCarthy

198 A.D.2d 909, 604 N.Y.S.2d 460

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly concluded that plaintiff may seek recoupment of payments for medical assistance by using remedies provided in article 10 of the Debtor and Creditor Law (see, Crabb v Estate of Mager, 66 AD2d 20; Matter of Rhodes, 148 Misc 2d 744; Bandas v Emperor, 121 Misc 2d 192). Dismissal of the action was not required because of plaintiff’s failure to name the estate of Edna McCarthy as a defendant. The proper remedy for nonjoinder, as Supreme Court determined, was to direct plaintiff to petition Surrogate’s Court for the appointment of a fiduciary to represent the estate so that the estate may be joined as a party (see, McLaughlin v McLaughlin, 155 ). (Appeal from Order of Supreme Court, Livingston County, Cicoria, J. — Nonjoinder.) Present — Callahan, J. P., Green, Fallon, Boomer and Davis, JJ.