§ 104-B — Liens for public assistance and care on claims and suits for personal injuries

New York § 104-B

• Jurisdiction: New York
• Law SOS: Social Services
• Title 6: Powers to Enforce Support
• Art. 3: Local Public Welfare Organization; Powers and Duties

Text

§ 104-b. Liens for public assistance and care on claims and suits for\npersonal injuries. 1. If a recipient of public assistance and care shall\nhave a right of action, suit, claim, counterclaim or demand against\nanother on account of any personal injuries suffered by such recipient,\nthen the public welfare official for the public welfare district\nproviding such assistance and care shall have a lien for such amount as\nmay be fixed by the public welfare official not exceeding, however, the\ntotal amount of such assistance and care furnished by such public\nwelfare official on and after the date when such injuries were incurred.\nIn all such cases, notice of the commencement of such an action shall be\nserved upon the public welfare district that has provided or is\nproviding such assistance and care, or upon the department of health.\n The commissioner shall endeavor to ascertain whether such person, firm\nor corporation alleged to be responsible for such injuries is insured\nwith a liability insurance company, as the case may be, and the name\nthereof.\n 2. No such lien shall be effective, however, unless a written notice\ncontaining the name and address of the injured recipient, the date and\nplace of the accident, and the name of the person, firm or corporation\nalleged to be liable to the injured party for such injuries, together\nwith a brief statement of the nature of the lien, the amount claimed and\nthat a lien is claimed upon the said right of action, suit, claim,\ncounterclaim or demand by the public welfare official be served prior to\nthe payment of any moneys to such injured party, by certified with\nreturn receipt or registered mail upon such person, firm or corporation,\nand his or her, its or their attorney, if known, and upon any insurance\ncarrier which has insured such person, firm or corporation against such\nliability. A copy of the notice of lien shall be mailed to such carrier\nat least twenty days prior to the date on which such carrier makes a\npayment to the injured party. Except as against such carrier, the\neffectiveness of the lien against any other party shall not be impaired\nby the failure to mail the required notice to such carrier. In addition,\na true copy of such notice shall be served by regular mail to the\nwelfare recipient and to his or her attorney, if known. Such mailing\nshall be deemed to be effective, notwithstanding any inaccuracy or\nomission, if the information contained therein shall be sufficient to\nenable those to whom the notice is given to identify the injured\nrecipient and the occurrence upon which his or her claim for damages is\nbased.\n 3. Upon the service of the notice, as aforesaid, the local public\nwelfare official shall file a true copy thereof in the office of the\nclerk of the county in which his office is located, and, thereupon the\nlien of the public welfare official in the amount therein stated shall\nattach to any verdict, decision, decree, judgment, award or final order\nin any suit, action or proceeding in any court or administrative\ntribunal of this state respecting such injuries, as well as the proceeds\nof any settlement thereof, and the proceeds of any settlement of any\nclaim or demand respecting such injuries prior to suit or action.\n 4. An amended notice of lien may be served and filed by such public\nwelfare official in the same manner and subject to the provisions of\nthis section governing the notice of lien originally served and filed\npursuant to this section.\n 5. (a) The person, firm, corporation or insurance carrier, having\nnotice that a social services official has served and filed a notice of\nlien, and intending to make payment on the personal injury claim upon\nwhich the lien was filed, shall notify the social services official by\ncertified or registered mail, at least ten days prior to the date such\npayment is proposed to be made, of the amount and date thereof.\n (b) Notwithstanding any inconsistent provision of this section, the\nsocial services official shall have the right to serve and file by\ncertified or registered mail, within five days after receipt of such\nnotice, excluding Saturdays, Sundays, and holidays, an amended notice of\nlien to include the amount of public assistance and care furnished to\nthe recipient after the date such official served and filed the notice\nof lien or the last previous amendment thereof.\n (c) A person, firm, corporation or insurance carrier that fails to\ngive the notice required by paragraph (a) of this subdivision shall be\nliable to the social services official to the same extent that it would\nhave been liable had such notice been given and the social services\nofficial had filed the amended notice of lien provided for in paragraph\n(b) of this subdivision.\n 6. Such lien may be enforced by action against those alleged to be\nliable for such injuries, as aforesaid, by the local public welfare\nofficial in any court of appropriate jurisdiction.\n 7. The aforesaid lien shall be valid and effective, when the notice\nthereof and the statement are served and filed as aforesaid, and shall\ncontinue until released and discharged by the local public welfare\nofficial by an instrument in writing and filed in the said county\nclerk's office, and no release, payment, discharge or satisfaction of\nany such claim, demand, right of action, suit or counterclaim shall be\nvalid or effective against such lien.\n 8. The county clerk shall, at the expense of the county, provide a\nsuitable book with proper index, to be called the public welfare lien\ndocket, in which he shall enter the names of the public welfare official\nand the recipient, the date and place of the accident and the name or\nnames of those alleged to be liable for such injuries, as aforesaid.\n 9. The provisions of this section to the contrary notwithstanding, the\nlien herein created shall be subject and subordinate to the lien on the\namount recovered by verdict, report, decision, judgment, award or\ndecree, settlement or compromise, of any attorney or attorneys retained\nby any such injured person to prosecute his claim for damages for\npersonal injuries, having or acquiring by virtue of such retainer a lien\non the cause of action of any such injured person, or on the verdict,\nreport, decision, judgment, decree made in, or any settlement or\ncompromise of, any such action or claim for damages for personal\ninjuries.\n 10. The provisions of this section to the contrary notwithstanding,\nthe lien herein created shall be subordinate to the lien of any hospital\nclaimed under and to the extent recognized by section one hundred\neighty-nine of the lien law, but only for treatment, care and\nmaintenance given, prior to or in excess of the public assistance and\ncare granted by the public welfare official.\n 11. The provisions of this section shall not be deemed to adversely\naffect the right of a public welfare official who has taken an\nassignment of the proceeds of any such right of action, suit, claim,\ncounterclaim or demand, to recover under such assignment the total\namount of assistance and care for which such assignment was made.\n 12. The provisions of this section to the contrary notwithstanding,\nthe lien herein created shall not apply with respect to any claim or\nbenefits payable to the recipients of any form of public assistance or\ncare, part of which is paid for by the government of the United States\nor any agency thereof when, in the opinion of the commissioner, such\nlien would jeopardize the continuation of such federal contribution.\n 13. The provisions of this section to the contrary notwithstanding,\nthe public welfare official may in his discretion release to the injured\nperson an amount not to exceed the cost of two years' maintenance from\nthe lien herein created.\n 14. Any inconsistent provision of this chapter or of any other law\nnotwithstanding, a social services official may not assert any claim\nunder any provision of this chapter to recover payments of public\nassistance if such payments were reimbursed by child support\ncollections.\n This section shall not apply to any claim or award which is or may be\nallowed pursuant to the provisions of the workers' compensation law or\nthe volunteer firefighters' benefit law.\n