THOMAS P. HOKE, AS COMMISSIONER OF BROOME COUNTY DEPARTMENT OF SOCIAL
SERVICES v. ANGELA ORTIZ, CENESKY, ALENIK, STEFANSKI & POOL,
83 N.Y.2d 323, 610 N.Y.S.2d 455, 610 N.Y.S.2d 455 (1994).
March 22, 1994
3 No. 33 (1994 NY Int. 035)
Decided March 22, 1994
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
KAYE, CHIEF JUDGE:
Angela Ortiz, a public assistance recipient, and the Department of
Social Services (DSS) assert competing claims to the proceeds of a
settlement of a personal injury case brought by Ortiz. Ortiz,
respondent on this appeal, wishes to retain her portion of the
proceeds (net of counsel fees) and terminate future financial
assistance, while appellant DSS claims the entire amount in
consideration of past benefits paid. We conclude that under Social
Services Law § 104(1) DSS may recoup the settlement proceeds (net of
counsel fees) and modify the Appellate Division order accordingly.
I.
Since 1987 public assistance has been the sole means of support for
respondent and her three children. According to DSS, the Ortiz family
has received benefits totalling more than $56,000.
In October 1991, after she was injured in an automobile accident,
Ortiz retained the law firm of Cenesky, Alenik, Stefanski & Pool to
pursue a personal injury claim against the driver of the vehicle in
which she was a passenger, and signed a contingency fee agreement
obligating her to pay the firm one- third of any recovery. Ortiz's
medical expenses were covered by no-fault insurance, and she suffered
no permanent injury.
In January 1992, Ortiz sought recertification to continue receiving
public assistance. During the process, she was asked in a
questionnaire and by a DSS interviewer whether she expected to receive
a lawsuit settlement, and each time she answered no. Ortiz read and
signed a statement agreeing to inform DSS of any change in her income.
Ortiz explains that she had been advised by her attorneys that
recovery was remote, and that she intended to notify DSS if she ever
SNIPPETS:
Angela Ortiz, a public assistance recipient, and the Department of Social Services (DSS)
Ortiz, respondent on this appeal, wishes to retain her portion of the proceeds (net of
We conclude that under Social Services Law § 104DSS may recoup the settlement proceeds and
In October 1991, after she was injured in an automobile accident, Ortiz retained the law firm
Ortiz sought recertification to continue receiving public assistance.
Ortiz explains that she had been advised by her attorneys that recovery was remote, and that
Before a check could be issued, DSS contacted Allstate and represented that it had a lien on
Allstate accordingly tendered to the Cenesky firm a settlement check in the amount of $50,000
Appellant then commenced this action against Ortiz under Social Services Law § 104seeking
Ortiz in turn sought summary judgment ordering DSS to endorse the check, and DSS cross-moved
Ortiz appealed the $33,217.09 judgment against her on the ground that Social Services Law §
We granted leave and now reinstate the order of Supreme Court.
At common law, past public assistance could not be recovered from the recipient, as charity,
Departing from that principle with "the most restrictive recovery provisions in the nation",
Read together, the statutes thus allow DSS the option to commence suit to recover the cost of
This conclusion is further supported by the fact that DSS permits a recipient subject to
While respondent makes a cogent argument for retaining the settlement proceeds and ending her
Where an attorney undertakes to settle a claim prior to commencement of an action, Judiciary
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