MATTER OF SCHNEIDER, 325932 (6-12-2007)



MATTER OF SCHNEIDER, 325932 (6-12-2007)

2007 NY Slip Op 51185(U)

In the Matter of the Estate of Leon Schneider, Deceased.

325932.

Surrogate's Court,

Nassau County.

Decided June 12, 2007.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

Epstein Becker & Green, New York, NY, (Attorney for Petitioner).

H. William Hodges, Esq., Rockville Centre, NY, (Guardian Ad Litem).

Nassau County Department of Social Services, Uniondale, NY., (Attorney

for Respondent).

JOHN B. RIORDAN, J.

This is a proceeding brought by Beth Schneider, the executor of the

estate of her father, Leon Schneider, to determine the validity of a

claim made by the Nassau County Department of Social Services against

the estate for public assistance rendered to Zeena Schneider, Leon's

wife, from June 10, 1996 to October 3, 2002, while Leon was still alive.

Leon and Zeena had two children, Beth Schneider and Marc Schneider,

who is mentally retarded. On August 11, 1972, Leon was shot four times

in what Beth described as a "bungled mob" assassination attempt.

According to newspaper articles, the gunman mistook Leon and three

others for the mobsters he intended to kill. Leon suffered serious

injuries that left him unable to work for the remainder of his life. He

began receiving Social Security disability benefits in January 1976 and,

according to Beth, also received a Worker's Compensation award.

Zeena was diagnosed with Alzheimer's Disease in 1992. On December 22,

1995, Leon, as attorney-in-fact for Zeena, executed an "Assignment to

Petition the Court for Support Pursuant to 18 NYCRR 360-3.2." It states

that, in consideration of the medical assistance and care provided and

to be provided to Zeena by the New York State and Nassau County

Departments of Social Services, Zeena assigned to the Nassau County

Department of Social Services (DSS) "so much of [her] right, title and

interest to petition the court for support from my legally responsible

spouse." Leon, as Zeena's spouse, executed a "Declaration of the Legally

Responsible Relative" on January 4, 1996. It states, "I, Leon Schneider,

declare that I refuse to make my income and/or resources available for

the cost of necessary medical care and services for the Medicaid

applicant/recipient listed above."

Zeena began receiving Medicaid on June 10, 1996 when she was placed in

a nursing home. The record before the court includes a "Medical

Assistance Institutionalized Spouse Budget Worksheet," which was signed

on March 11, 1997 by a representative of DSS. The worksheet bears the

date of March 12, 1997 and lists the date of application as April 18,

1996. According to the worksheet, Leon had $ 268,048 in excess resources

and $ 157.80 in excess monthly income above the amounts allowed under

the rules and regulations applicable at that time.

Leon predeceased Zeena. He died on October 3, 2002. By prior decision

(Dec. No. 951, January 13, 2003), the guardian ad litem appointed by the

court to represent Zeena's interest in the probate proceeding in Leon's

estate was directed to exercise the right of election on her behalf, as

the surviving spouse, as the failure to exercise it would have resulted

in Zeena's non-eligibility for Medicaid.

Zeena died on December 3, 2003. The guardian ad litem had not yet

exercised the right

Page 2

of election on Zeena's behalf and, the right being personal, with

certain statutory exceptions, to the surviving spouse, was extinguished

upon her death (EPTL 5-1.1-A [c] [3].) A personal representative has not

been appointed for her estate.

On or about June 9, 2003, DSS filed the subject claim for $ 386,382.77

for public assistance provided to Zeena from June 10, 1996 to October 3,

2002, claiming preferred creditor status pursuant to Social Services Law

§ 104 (1); the claim was rejected by the estate on September 5, 2003.

Leon's will was admitted to probate by decree of this court on

February 24, 2004. The will created a supplemental needs trust for Zeena

to be funded with Leon's residuary estate. Upon Zeena's death, her

supplemental needs trust was to be distributed in accordance with the

terms of Leon's will, which contained bequests to Marc of $ 15,000 in a

supplemental needs trust, $ 15,000 outright to a niece, $ 5,000 to

Putnam ARC, and the rest to Beth.

Beth commenced the instant proceeding on December 1, 2005, asking the

court to determine that DSS's claim is invalid and should be disallowed.

The petition alleges that Leon's gross taxable estate is approximately $

566,000 and the net probate estate is approximately $ 350,625. Along

with the petition, Beth filed an affidavit, sworn to on November 1,

2005, in which she states, but supplies no proof, that Leon

"continuously made the monthly spousal income contributions requested by

the Department of Social Services." On the return date of the citation,

DSS failed to appear or interpose any objection to the relief requested.

By order dated April 21, 2006, the court appointed a guardian ad litem

to protect Marc's[fn1] interests in this proceeding. The guardian ad

litem filed his report on May 15, 2006, at which time DSS was in

default. In the report, the guardian ad litem states that Marc is

"woefully disabled" and "functions at the level of a two-year old

infant." The guardian ad litem also states that "if the claim is upheld

no beneficiary, including my ward, Marc Schneider, who is permanently

disabled, will receive any benefit under the will." The guardian ad

litem concludes that the claim should be denied.

DSS filed its verified answer to the petition on September 14, 2006,

after the court issued Dec. No. 405 on August 16, 2006 giving DSS thirty

days from the date of the decision and order to do so. The DSS asserts

that the claim is valid under a theory of an "implied contract" between

it and Leon.

After the petitioner and DSS submitted memoranda of law, the matter

was submitted for decision.

DISCUSSION

The petitioner asserts that the claim against the estate is invalid on

the following grounds: (1) both federal and New York State law preclude

the recovery of properly paid medical assistance, except in certain

circumstances not applicable in this case; (2) DSS cannot recover

against the estate of a Medicaid recipient's spouse; (3) DSS cannot

recover against the estate of a Medicaid recipient's predeceased spouse;

(4) recovery of a claim is prohibited where the Medicaid recipient is

survived by a permanently disabled child; (5) DSS failed to meet its

burden of proving "sufficient ability" on Leon's part at the time

Medicaid assistance was rendered to

Page 3

Zeena; and (6) the claim is barred by the equitable defense of laches.

DSS counters that the claim is properly recoverable from Leon's estate.

Briefly, Medicaid is a "co-operative Federal-State program operated

under State direction, but subject to Federal statutory and regulatory

guidelines" (Scarpuzza v Blum, 73 AD2d 237, 241-242 [2d Dept 1980]).

Enacted by Congress in 1965, Medicaid "was intended to provide partial

federal funding of the cost of providing medical care to the

disadvantaged" (id. at 241). States are not required to participate in

the Medicaid program; however, if a state participates, it is required

by federal law to enact a "statutory plan detailing the extent of

coverage and comporting with Federal law" (id. at 242). The numerous

required provisions of a state Medicaid plan are governed by

42 USC § 1396a (a). State programs are required to comply with

42 USC § 1396p

"with respect to liens, adjustments and recoveries of medical assistance

correctly paid" (42 USC § 1396a [a] [18]). Section 1396p (b) (1) permits

a state to recover for medical assistance properly paid only in limited

circumstances:

(A) In the case of an individual described in subsection (a)(1)(B) of

this section, the State shall seek adjustment or recovery from the

individual's estate or upon sale of the property subject to a lien

imposed on account of medical assistance paid on behalf of the

individual.

(B) In the case of an individual who was 55 years of age or older when

the individual received such medical assistance, the State shall seek

adjustment or recovery from the individual's estate, but only for

medical assistance consisting of

(i) nursing facility services, home and community-based services, and

related hospital and prescription drug services, or

(ii) at the option of the State, any items or services under the

State plan (42 USC § 1396p [b] [1] [A] & [B]).

New York State began participating in the Medicaid program in 1966

(Matter of Colon, 83 Misc 2d 344, 346 [Sur Ct, Kings County 1975],

citing L 1966, ch 256, § 3, eff April 30, 1966). Sections 363 through

369 of Article 5, title 11 of the Social Services Law govern New York

State's medical assistance implementation. Federal and New York State

law generally prohibit "recovery from the property of the recipient"

(Matter of Craig, 82 NY2d 388, 391 [1993], citing 42 USC § 1396a [a]

[18] and Social Services Law § 369 [2]). Social Services Law § 366 (3)

(a) is of particular significance to the determination of this

proceeding. It states: Medical assistance shall be furnished to

applicants in cases where, although such applicant has a responsible

relative with sufficient income and resources to provide medical

assistance as determined by the regulations of the department, the

income and resources of the responsible relative are not available to

such applicant because of the absence of such relative or the refusal or

failure of such relative to provide the necessary care and assistance.

In such cases, however, the furnishing of such assistance shall create

an implied contract with such relative, and the cost thereof may be

recovered from such relative in accordance with title six of article

three and other applicable provisions of law (Social Services Law § 366

[3] [a]).

In Matter of Craig (82 NY2d 388 [1993]), the issue before the Court of

Appeals was

Page 4

whether the Wayne County Department of Social Services was entitled to

reimbursement from the estate of Elizabeth Craig for Medicaid payments

provided to her husband, Norman. In 1983, Norman received Medicaid in

the amount of $ 4,373.79. He died intestate soon after. Wayne County did

not seek reimbursement from Elizabeth during her lifetime. The Court of

Appeals noted that it was undisputed that she lacked the financial means

that would have made her a "financially responsible relative" during the

time her husband was receiving benefits and until her own death

(id. at 390). By way of further background, Elizabeth also received

Medicaid in the amount of $ 10,478 prior to her death in 1989. She died

leaving an estate worth $ 27,348.50, out of which was paid the $ 10,478

claim filed in connection to her care. It was the claim against

Elizabeth's estate for $ 4,373.79 (plus interest since 1983) for

Medicaid provided to Norman that made its way to the Court of Appeals

after the Surrogate's Court and the Appellate Division disallowed the

claim (id. at 390-391).

The Court of Appeals determined that the Wayne County Department of

Social Services was not permitted to require an individual to sell his

home to pay for Medicaid (id. at 391). Thus, the surviving spouse of a

Medicaid recipient is not a responsible relative solely by dint of the

fact that he or she owned a house. However, an exception to the rule is

allowed upon the death of a person who was over fifty-five[fn2] when he

received medical assistance. In that instance, his house can be sold to

recover Medicaid payments properly paid to the recipient

(id.;42 USC § 1396p [b] [1] [B]). The Court of Appeals noted that this

was what was done in order for Wayne County to recover the payments made

to Elizabeth. But, the Court found that "the exception is qualified and

did not allow Wayne County to reach even farther back for recoupment as

to her predeceased husband's Medicaid payments" (id.).

The Court of Appeals explained that:

"[t]his scheme is set forth in Social Services Law § 369(2), which

incorporates Social Services Law § 366(3). When medical assistance is

furnished to an applicant who has a responsible relative with sufficient

income and resources to provide medical assistance, the furnishing of

such assistance shall create an implied contract with such relative. But

a responsible relative' by necessity and statute is determined by the

sufficient ability to pay at the time the expenses are incurred. Social

Services Law § 101 (Liability of relatives to support') only provides

that the spouse or parent of a recipient of public assistance or care

. . . if of sufficient ability, [will] be responsible for the support of

such person' (§ 101 [1]; emphasis added)" (id. at 391-392).

The Court of Appeals held that Elizabeth's estate was not liable for

the Wayne County Department of Social Services' claim for services

rendered to Norman because Elizabeth did not have sufficient means at

the time Medicaid payments were furnished to Norman (id. at 392). The

Court found that Wayne County's reliance on Social Services Law §

104[fn3] to support its claim

Page 5

against Elizabeth was misplaced, because that "section does not take the

sufficient means test out of contemporaneous assessment as of the time

the Medicaid payments are made on behalf of a predeceased relative"

(id.). The Court of Appeals concluded that the "assertion of a nunc pro

tunc obligation against the widow's estate is not supportable under

presently governing statutes, regulations and decisional reasoning"

(id. at 390).

There are three significant differences between the facts in

Matter of Craig and those before this court. First, in Craig, Elizabeth

was determined to have lacked sufficient means at the time Norman

received Medicaid benefits. Thus, the Court of Appeals concluded that

Wayne County could not recoup the payments from her estate (id. at 390,

392). In the instant case, a contemporaneous assessment was made by

Nassau County DSS that Leon had the requisite excess resources above the

maximum community spouse[fn4] resource allowance[fn5] and income above

the minimum monthly needs allowance,[fn6] and that Leon had refused to

contribute for Zeena's care (as shown on the Medical Assistance

Institutionalized Spouse Budget Worksheet, annexed as Exhibit 4 to DSS's

answer).

Beth acknowledges that an implied contract is created between the

Department of Social Security and the spouse of the recipient if the

spouse has sufficient ability to contribute to the recipient's care, but

refuses to do so. However, she argues that DSS has failed to allege or

prove that there was an implied contract between it and Leon and that

Leon had the "sufficient ability" to pay at the time Zeena was receiving

Medicaid.

There is no question that Leon refused to contribute his resources and

income to Zeena's

Page 6

care. His declaration to that effect is attached as Exhibit 3 to DSS's

answer. Further, the Budget Worksheet, which Beth entirely ignores,

shows that Leon had excess income and resources at the time that Zeena

was receiving Medicaid that he could have contributed toward her care.

Thus, the court concludes that an implied contract was created between

Leon and DSS.

The second difference between these two cases is that in Matter of

Craig (82 NY2d 388, 389-390 [1993]), the community spouse postdeceased

the recipient spouse whereas in this proceeding, the community spouse,

Leon, predeceased the recipient spouse, Zeena. Beth argues that this

forecloses any right of recovery DSS may have had against Leon or his

estate. In support of her position, Beth asserts that (1) a "claim

against the estate of a predeceased community spouse while the Medicaid

recipient continues to receive benefits would require forestalling the

closing of the community spouse's estate until the recipient spouse was

also deceased;" and (2) since a claim could not be asserted until after

the recipient's death, the claim amount would continue to accrue and its

value would only be known at the time of death of the recipient."

For purposes of Medicaid, the community spouse is chargeable with the

recipient spouse's support only until the time of the community spouse's

death (see Social Service Law § 101 [1] & [2]). Indeed, although Zeena

continued to receive Medicaid until her death on December 3, 2003, the

end date of the claim by DSS is October 3, 2002, the date of Leon's

death. The court can discern no reason why happenstance, that Leon

predeceased rather than post-deceased Zeena, should vitiate the implied

contract between him and DSS. Beth correctly points out that there is no

New York State authority directly on point.

However, this is not the first time a New York State court has been

faced with the situation where the Department of Social Services has

asserted a claim against the estate of a predeceased community spouse

for Medicaid payments provided, during the community spouse's life, to

the institutionalized spouse. In Matter of Tomeck (29 AD3d 156 [3d Dept

2006], lv granted, 7 NY3d 713 [2006]), the Appellate Division, Third

Department, upheld the Saratoga County Surrogate's denial of the

Department of Social Service's claim against the estate of the

predeceased community spouse on the grounds that no implied contract

existed between community spouse and the Department because the

community spouse did not have sufficient income and resources to provide

for her institutionalized husband at the time Medicaid payments were

rendered on his behalf (id. at 159, 162). Notably, the fact that the

community spouse died before the institutionalized spouse did not even

enter into the Court's discussion.

The third difference is that, in this proceeding, Leon and Zeena were

survived by a permanently disabled son, Marc, which, Beth argues,

precludes DSS from recovering from Leon's estate. Beth relies on Social

Services Law § 369 (2), which states, in relevant part that "[a]ny such

. . . recovery shall be made only after the death of the individual's

surviving spouse, if any, and only at a time when the individual has no

surviving child who is . . . permanently and totally disabled. . . ."

(Social Services Law § 369 [2] [b] [ii]). Beth also relies on two cases,

Matter of Burstein (160 Misc 2d 900 [Sur Ct, New York County 1994]) and

Matter of Andrews (234 AD2d 692 [3d Dept 1996]).

The issue in Matter of Burstein was whether Social Services Law § 369

precluded the New York County Commissioner of Social Services from

recovering payments for medical

Page 7

assistance paid on behalf of a decedent, who was survived by a

permanently disabled child who did not depend on the decedent for

support (Matter of Burstein, 160 Misc 2d 900, 900-901 [Sur Ct, New York

County 1994]). Relying on the "plain language" of Social Services Law

§ 369 (2), Surrogate Preminger determined that "where a spouse or

disabled child receives a benefit from the estate, the statute should

apply regardless of whether the spouse or disabled child received

financial support during decedent's lifetime, and even if some of

decedent's assets are bequeathed to others" (id. at 902).

In Matter of Andrews (234 AD2d 692 [3d Dept 1996]), the Appellate

Division, Third Department, affirmed the Rensselaer County Surrogate's

order denying the Rensselaer County Commissioner of Social Services's

application for a determination of the validity of a claim it made

against the estate of Lucretia Andrews for Medicaid benefits provided to

her by the county (id. at 693). Lucretia died intestate, survived by two

distributees, her children, one of whom was permanently and totally

disabled (id. at 692). The Commissioner sought repayment only from

Lucretia's non-disabled son's distributive share, which would have left

her disabled son's share intact (id. at 693). The Third Department

determined that it "cannot endorse this approach because it runs afoul

of Social Services Law § 366 (3) and § 101 (1), which limit the

responsibility to contribute to the support of a Medicaid recipient to

the recipient's spouse or parent" (id.).

However, Beth fails to consider the Appellate Division, Second

Department case, Matter of Samuelson (110 AD2d 187 [2d Dept 1985]),

wherein that Court reached a different conclusion. In that case, the

Court was faced with the issue of "whether Social Services Law § 369 (1)

(b) bars recovery of correctly paid medical assistance benefits from the

estate of an individual who was the recipient of medical assistance

while age 65 and older, and which recipient was survived by a legally

blind and totally permanently disabled adult child who was neither a

dependent of the recipient nor a named beneficiary under the recipient's

last will and testament," a question Surrogate Laurino had answered in

the negative (id. at 187-88)[fn7]. The Second Department affirmed the

Queens County Surrogate Court's decree (id. at 188). The Court explained

that the Surrogate had recognized that a literal reading of the statute

would have precluded recovery, but had "concluded that the rationale and

intent of the statutory scheme warranted a contrary result"

(id. at 189).

In its comprehensive decision, the Second Department also recognized

that the literal language of Social Services Law § 369 (1) (b) would

render New York City Department of Social Services' claim unenforceable,

but, like Surrogate Laurino, concluded that a literal interpretation of

the statute would "contravene and frustrate the legislative objective

sought to be achieved by the statute" (id. at 190-191). The Second

Department examined the legislative history behind Social Services Law

§ 369 (1) (b) and found an intent to comply with the federal enabling

legislation (id. at 191), which it also examined. In so doing, the Court

found a: "legislative concern for the protection of those individuals

who were financially dependent on the deceased recipient, namely the

recipient's surviving spouse, infant issue, or blind or disabled

Page 8

children. This protection is afforded by the statutory provisions

currently embodied in 42 USC § 1396p (b) (2) (A) and Social Services Law

§ 369 (1) (b) which seek to insure that the assets of the deceased

recipient's estate, upon which these individuals rely, would not be

depleted by the recoupment of medical assistance benefits. Thus,

contrary to petitioner's position, the triggering factor of the

restrictive recoupment statutes is not the mere existence of a surviving

spouse, infant issue, or blind or disabled child. Rather, the statute is

predicated on the assumption that the surviving spouse, infant issue or

blind or disabled child was financially dependent upon the recipient

prior to the latter's death and that the protected individual is

entitled to a share of the deceased recipient's estate. Clearly, it is

this latter group of needy individuals which the restrictive recoupment

provision seeks to protect since the depletion of the assets of the

deceased recipient's estate would be directly detrimental to their

future financial independence and self-care" (id. at 192-193).

Relying also on case law and the fact that, in appropriate situations,

courts are permitted to "depart[ ] from the literal letter of a statute

in order to sustain the legislative objective of the statutory scheme"

(id. at 191). The Second Department affirmed the Surrogate, concluding

that "[a] contrary result would undoubtedly undermine the purpose of the

statutory scheme since the only recipient of the $ 28,801.88 windfall to

the estate would be the petitioner who is not an intended beneficiary of

the restrictive recoupment provision" (id. at 196-197).

In this proceeding, Leon left $ 15,000, to be placed in a supplemental

needs trust, to his permanently disabled son, Marc. There is no evidence

that Marc was financially dependent on Zeena or Leon. Thus, this court

finds, under the authority of Matter of Samuelson (110 AD2d 187 [2d Dept

1985]), that repayment of DSS's claim is not precluded by Social

Services Law § 369 (1) (b). However, since Leon bequeathed to Marc $

15,000 to be placed in a supplemental needs trust for his benefit, Marc

is to receive that amount prior to the payment of the claim.

Finally, Beth argues that DSS's claim is barred by the equitable

defense of laches. She claims that DSS should have brought suit against

Leon during his lifetime because, having not done so, Leon "reasonably

concluded that because of his unique personal situation the Department

of Social Services had acknowledged by its failure to act that he was

not sufficiently able to contribute to his wife's care during his

lifetime and therefore would not seek financial contribution from him."

Beth asserts that this deprived Leon of the opportunity to show that he

did not have the "sufficient ability to pay for the Medicaid payments

made on behalf of his wife."Beth's assertion is contrary to statute and

case law. The time for DSS to make a determination about whether the

community spouse has "sufficient ability" to contribute is "at the time

the expenses are incurred" (Social Services Law § 101 [1]; Matter of

Craig, 82 NY2d 388, 391-392 [1993]). At the time of the assessment, Leon

had the opportunity to request a hearing to attempt to establish that

the Medicaid minimum monthly needs allowance was inadequate "based on

exceptional circumstances which result[ed] in significant financial

distress" (Social Services Law § 366-c [8] [a] & [b]). He did not avail

himself of this right, and his estate is foreclosed from arguing now

that he did not have the sufficient ability to contribute his support to

Zeena. Additionally, repayment of the claim, except to the extent such

money would come from funds designated for Marc, will not injure any

person the recoupment limitations were designed to protect.

Page 9

The court is unpersuaded by Beth's argument that federal law

forecloses payment of the claim from Leon's estate. Beth bases her

assertion on 42 USC § 1396p (b) (1), which limits recovery to the

recipient's estate for medical assistance correctly paid, when the

recipient was over the age of fifty-five at the time he or she was

receiving benefits. In support of her position, Beth has asked the court

to consider the case of Hines v Department of Public Aid

(358 Ill App 3d 225 [App Ct, Ill 2005])

where the Appellate Court of Illinois determined

that the Department of Public Aid could not recover from the estate of

the recipient's spouse for Medicaid benefits paid to the recipient

(Hines v Department of Public Aid, (358 Ill App 3d 225, 233 [App Ct, Ill

2005]). The court stated, "Because federal law does not provide an

exception to the general rule prohibiting recovery of medical assistance

payments that would permit recovery from the estate of the surviving

spouse of the recipient, Illinois law to the contrary exceeds the

authority granted under federal law" (id.).

This court has reviewed the Hines case and finds itself in agreement

with the dissenting justice, who stated that the majority's conclusion

"ignore[s] the federal mandate that the State shall seek adjustment or

recovery of any medical assistance correctly paid on behalf of an

individual' at the appropriate time prescribed by statute"

(id.).

In 1997, Supreme Court, New York County, rendered its decision in

Commissioner of the Department of Social Services of the City of New

York v Spellman (173 Misc 2d 979 [Sup Ct, NY County 1997]). The

Department of Social Services relied on an implied contract theory under

Social Services Law § 366 (3) (a) for its claim against the then-living

community spouse. The issue in Spellman was whether, "under the Social

Services Law, the Department may recover the Medicaid assistance paid

for the care of an institutionalized spouse from the community spouse,

or whether such recovery is barred because there is no analogous Federal

statutory scheme" (id. at 981). In reviewing the statutory framework of

the title XIX of the Social Security Act, the court pointed out that it

requires a state or local administering agency to "take all reasonable

measures to ascertain the legal liability of third parties . . . to pay

for care and services available under the plan'" (id. at 983, quoting

42 USC § 1396a [a] [25] [A]). The court then analyzed, at length, whether

federal law preempted state law on this issue (id. at 985) and found

that it did not (id. at 986-989). The court also found that the

Department did not have the authority to bring the action while the

community spouse was alive, but could bring an action after he died

against his estate, "since he had sufficient means during the period the

medical assistance was rendered" to his wife (id. at 989-990, citing

Matter of Craig, 82 NY2d 388, 393 [1993]). The court determined that

Social Services Law § 366 (3) (a) created an implied contract between

the Department and the community spouse and that Social Services Law

§ 366 (3) (c) "specifically authorizes a proceeding to compel any

responsible relative to contribute to the support of any person

receiving or liable to become in need of medical assistance'"

(id. at 983).Based upon the governing statutes, Matter of Craig

(82 NY2d 388 [1993]) and

its progeny, and Matter of Samuelson (110 AD2d 187 [2d

Dept 1985]), the court finds that Nassau County DSS's claim against

Leon's estate is valid and payable from his net estate, except to the

extent payment of the claim would impinge on the $ 15,000 bequest to

Marc to be placed in a supplemental needs trust.

The guardian ad litem indicated in his report dated May 15, 2006 that

he has spent 4.5 hours representing Marc in this matter. To the extent

the guardian ad litem has spent additional time since then, he is

directed to file an affirmation of legal services within fifteen days of

the [*10]date of this decision. His fee will be fixed at the foot of the

decree.

Settle decree on five days' notice. Dated: June 12, 2007

John B. Riordan

Judge of the

Surrogate's Court

The appearance of counsel are as follows:

[fn1] By Amended Decree dated August 16, 2006, the court appointed Beth

and Marcie Agee, a niece of Leon, as the co-guardians of the person and

property of Marc pursuant to SCPA 17-A.

[fn2] At the time that the Court of Appeals decided Craig, the statutory

age was sixty-five (Matter of Craig, 82 NY2d 388, 391 [1993]).

[fn3] New York Social Services Law § 104 (1) reads as follows:

"A public welfare official may bring action or proceeding against a

person discovered to have real or personal property, or against the

estate or the executors, administrators and successors in interest of a

person who dies leaving real or personal property, if such person, or

any one for whose support he is or was liable, received assistance and

care during the preceding ten years, and shall be entitled to recover up

to the value of such property the cost of such assistance or care. Any

public assistance or care received by such person shall constitute an

implied contract. No claim of a public welfare official against the

estate or the executors, administrators and successors in interest of a

person who dies leaving real or personal property, shall be barred or

defeated, in whole or in part, by any lack of sufficiency of ability on

the part of such person during the period assistance and care were

received."

[fn4] A community spouse is defined under New York law as the spouse of

an institutionalized spouse (NY Soc. Serv. Law § 366-c [2] [b]).

[fn5] The "community spouse resource allowance" refers to the "highest

amount of resources the community spouse is permitted to own" and still

have the institutionalized spouse qualify for Medicaid (Goldfarb and

Rosenberg, New York Guide to Tax, Estate & Financial Planning for the

Elderly, § 7.02 [4] [2005 ed]).

[fn6] The "minimum monthly maintenance needs allowance" "is the amount

set by regulation that is supposed to be adequate to provide for the

support of the community spouse" (Goldfarb and Rosenberg, New York Guide

to Tax, Estate & Financial Planning for the Elderly, § 7.02 [3] [2005

ed]).

[fn7] In New York State, effective April 1, 1994, the age was lowered to

fifty-five (Social Services Law § 369 [2] [b] [i] [B]; Goldfarb and

Rosenberg, New York Guide to Tax, Estate & Financial Planning for the

Elderly, § 8.05 n 2 [2005 ed]).

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