In this judicial accounting proceeding, the Public Administrator moves to dismiss the objections filed by one of the decedent's alleged nephews, who is appearing pro se, for failure to state a cognizable claim and to raise any triable issue of fact. On the return date of the motion, the court advised the parties that it would treat the motion as one for summary judgment pursuant to CPLR 3212, and gave them time to file and serve opposition and reply papers. That time has now passed and the motion is fully submitted. At issue is whether a claim by the New York City Department of Social Services (DSS) for Medicaid benefits furnished to the decedent must be paid in full, exhausting the assets of the estate.

The decedent died on March 6, 2007 at the age of 89, and letters of administration issued to the Public Administrator on December 11, 2008. The decedent's alleged distributees are four nephews, one of whom is the objectant. About nine years prior to the decedent's death, a Mental Hygiene Law article 81 guardian of her property was appointed for her. In the article 81 proceeding, on February 14, 2000, DSS filed a proof of claim as a preferred creditor seeking $58,294.47 for care provided to the decedent at the Hebrew Hospital Home, Inc. (HHC) from October 1, 1998 through December 19, 1999. In that proof of claim, DSS indicated that HHH then charged $124.29 per diem for the decedent's care.

Ultimately, that DSS claim was paid in the article 81 proceeding as reflected in a stipulation of discontinuance and an annual account for the year 2000 filed by the article 81 guardian in that proceeding. On September 28, 2007, the article 81 guardian was examined by the Court Examiner in the article 81 proceeding and stated that the decedent still resided at HHH at the time of her death on March 6, 2007.

The Public Administrator's account indicates a gross estate of $180,221.72, comprised of [*2]funds collected from the article 81 guardian and an account with HHH, and a net estate of $170,007.91, which is less than a DSS Medicaid claim of $515,926.94. As a result, the Public Administrator seeks to pay the entire estate to DSS on account of its claim. In his objections, the pro se objectant asserts, in essence, that the decedent's article 81 guardian never informed him or his family of the decedent's situation, the Medicaid lien was previously paid, and he and the family would like a settlement of $58,294.47 to be distributed equally to the four nephews, with the Medicaid claim deemed satisfied with the remaining balance of the proceeds. The guardian ad litem appointed for the benefit of unknown heirs filed a report indicating that jurisdiction is complete, there is no merit to the objections as DSS has a valid claim, and the account should be settled and allowed.

In support of its motion for summary judgment, the Public Administrator contends that: (1) the article 81 proceeding relating to the decedent concluded upon the entry of an order settling the final account, that determination is final and binding, the DSS claim exhausts the estate; and, (2) although there is no claim or request in the file, if the objectant seeks to erect a memorial, marker or headstone on the grave, the Public Administrator is willing to maintain a reserve of $3,000 for that purpose for a limited time, pending the objectant's presentation of a monument proposal, as a gravestone expense has priority over the Medicaid claim. In opposition, the objectant contends that the itemized bill presented by DSS in support of its claim includes the same $58,294.47 previously paid and, based on this evidence, the court should discredit DSS' remaining claim of over $400,000, and allow him and his family to settle DSS' claim. The Public Administrator replies, inter alia, that although DSS erroneously submitted duplicate billing for the $58,294.47 Medicaid payment already made, the outstanding balance of $457,632.47 for the cost of the decedent's nursing home care during the seven and one-half years after that payment exhausts the estate, and the Public Administrator has no basis to force DSS to settle its claim.

SCPA 1811 sets forth the priority of the payment of debts and expenses of an estate. After the funeral bill and the expenses of administration are paid, the fiduciary must then pay "[d]ebts entitled to a preference under the laws of the United States and the State of New York" (see SCPA 1811 [2] [a]). Pursuant to both federal and New York State law, DSS is required to seek recovery from an estate where a person age 55 or over received medicaid assistance for, inter alia, nursing facility services provided during the preceding ten years (see 42 USC § 1396p [b] [1] [B] [i]; Social Services Law §§ 104 [1]; 369 [2] [b] [i] [B]). Only the DSS, not the Public Administrator, has any authority to compromise its claims (see e.g. Matter of Andrus, 85 Misc 2d 1062, 1064 [1976]).

Here, the decedent died in 2007 at the age of 89, and the outstanding DSS charges were incurred at a time when the decedent was over the age of 55 and in a nursing home. Even if one deducts $58,294.47 from the entire DSS claim, the outstanding balance of that claim exhausts the estate.

Accordingly, this decision constitutes the order of the court granting the Public Administrator's motion for summary judgment dismissing the objections.

The Public Administrator shall update her account and settle a decree.

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SURROGATE