§ 634 — Subrogation

§ 634. Subrogation. 1. (a) Acceptance of an award made pursuant to\nthis article shall subrogate the state, to the extent of such award, to\nany right or right of action accruing to the claimant or the victim to\nrecover payments on account of losses resulting from the crime with\nrespect to which the award is made. Upon the payment of an award, the\noffice may, by writing, notify the claimant that such claimant has\nninety days, or thirty days prior to the date of expiration of the\napplicable statute of limitations, whichever period is shorter, within\nwhich to commence an action against his assailant or any third party\nwho, as a result of the crime, may be liable in damages to the claimant.\nIf the claimant fails to commence an action within the time provided\nherein, such failure shall, after written notification by the office to\nthe claimant, operate as an assignment of the claimant's cause of action\nagainst the assailant or such other third party to the state; provided,\nhowever, that should the claimant's cause of action be in an amount in\nexcess of the office's award, such assignment shall be for only that\nportion of the cause of action which equals the amount of the award.\n (b) The office of victim services shall review those claims that have\nbeen approved by the office and that have resulted in an award in excess\nof one thousand dollars for the purpose of identifying those causes of\naction that are likely to result in recovery of the state's payment to\nthe victim. The office shall submit a list of these claims on a monthly\nbasis to the attorney general with all necessary information relating to\nthe case including whether the claimant's cause of action has been\nassigned to the office.\n (c) The attorney general may commence an action against the defendant\nconvicted of the crime or third party for money damages to the extent of\nthe award paid, and the claimant shall retain a right of action, subject\nto defenses, to recover damages for the full amount of loss incurred by\nhim as a result of the crime less the amount assigned to the state by\noperation of this subdivision. Notwithstanding any other provision of\nlaw, an action brought by the attorney general pursuant to this\nparagraph against the defendant convicted of the crime must be commenced\nwithin seven years of the crime or pursuant to the time frames\nauthorized in subdivision three of section six hundred thirty-two-a of\nthis article. A claimant who retains such right of action shall be\npermitted to intervene in any action brought pursuant to this\nsubdivision by the attorney general. Any action brought by the attorney\ngeneral may be compromised or settled provided the attorney general and\nthe office find that such action is in the best interests of the state.\n 2. Acceptance of an award made pursuant to this article shall create a\nlien in favor of the state on the proceeds of any recovery from the\nperson or persons liable for the injury or death giving rise to the\naward by the office, whether by judgment, settlement or otherwise, after\nthe deduction of the reasonable and necessary expenditures, including\nattorney's fees, incurred in effecting such recovery, to the total\namount of the award made by the office. Such lien shall attach to any\nmoneys received or to be received by the claimant or victim on account\nof losses resulting from the crime. Should the claimant or victim secure\na recovery from the person or persons liable for the injury or death\ngiving rise to the award by the office, whether by judgment, settlement\nor otherwise, such claimant may, upon notice to the office, apply to the\ncourt in which the action was instituted, or to any court of competent\njurisdiction if no action was instituted, for an order apportioning the\nreasonable and necessary expenditures, including attorney's fees,\nincurred in effecting such recovery. Such expenditures shall be\nequitably apportioned by the court between the claimant and the office.\nA copy of such lien shall be mailed to the clerk of the county within\nwhich the crime occurred and such clerk will file the copy in accordance\nwith the duties of such clerk as set forth in section five hundred\ntwenty-five of the county law. The amount of such lien may be\ncompromised or settled by the office provided the office finds that such\naction is in the best interests of the state, or payment of the full\namount of the lien to the state would cause undue hardship for the\nvictim.\n 2-a. To the extent the office has made an award pursuant to this\narticle for burial expenses, such amount shall be considered among\nreasonable funeral expenses of the decedent pursuant to subdivision one\nof section eighteen hundred eleven of the surrogate's court procedure\nact, to be recovered by the office, provided, however, that if a\nbeneficiary of the victim's estate is also a person eligible to receive\nan award pursuant to section six hundred twenty-four of this article,\nthe office shall recover such amounts pursuant to subdivision two of\nthis section to the extent an award has been made to such person, prior\nto pursuing recovery from the victim's estate. Any recovery from a\nvictim's estate under this subdivision shall reduce the state's lien\nunder this section to the extent of the recovery by the office.\n 3. Any claimant who has received an award under this article, or his\nguardian, judicially appointed personal representative, or his estate,\nwho brings an action for damages against the person or persons liable\nfor the injury or death giving rise to an award by the office under this\narticle shall give written notice to the office of the commencement of\nsuch action at the time such action is commenced. Such notice shall be\nserved personally or by certified mail, return receipt requested.\n 4. The attorney general may intervene, as of right, in any such action\non behalf of the state of New York for the purpose of recovering the\nsubrogated interest due the state of New York under the provisions of\nthis article.\n 5. The director shall adopt rules and regulations to carry out the\nprovisions and purposes of this section.\n 6. The office shall compile information on the number of cases\nsubmitted to the attorney general, the number of actions instituted by\nthe attorney general to recover payments made to crime victims, the\ndollar amount of recoveries made in such actions both on behalf of the\nstate and any awards made to victims who intervene in such actions. The\noffice shall include this information, and any recommendations to the\ngovernor and legislature to improve the collection of awards, in its\nannual report.\n