Matter of Cilenti

[*1] Matter of Cilenti 2009 NY Slip Op 50832(U) [23 Misc 3d 1118(A)] Decided on April 30, 2009 Sur Ct, Bronx County Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through May 1, 2009; it will not be published in the printed Official Reports.

Decided on April 30, 2009
Sur Ct, Bronx County

In the Matter of the Estate of Carmela Mildred Cilenti, Deceased



368-A-2004/A



The only appearance is as follows:

The Cochran Firm (Gregory J. Cannata & Associates, by Gregory J. Cannata, Esq, of counsel) for Rosaria Cilenti, petitioner

Lee L. Holzman, J.

This is an application by the administratrix, the decedent's daughter and sole distributee, to remove the restrictions contained on her limited letters of administration so that she may receive and judicially account for the proceeds of a personal injury cause of action settled after mediation.

The decedent sustained injuries on November 7, 2003 as a result of a fall while a patient at a nursing home and died intestate on February 13, 2004, of unrelated causes. The New York State Department of Taxation and Finance consents to the relief requested. MSPRC Liability, on behalf of the Medicare Program, was served with process seeking to allow its principal claim of $18,050.15 in full satisfaction of its lien, and to reject its claim for $729.53 in interest. MSPRC defaulted.

Disbursements, and counsel fees which are in accord with Judiciary Law § 474-a, are allowed in the sum requested. The sum of $6,339.95 is to be paid to the Department of Social Services of the City of New York in payment of its claim for Medicaid assistance furnished to the decedent.

As requested, the sum of $18,050.15 is to be paid to MSPRC Liability in payment of the alleged principal amount due on its claim for Medicare benefits furnished to the decedent. The balance of MSPRC's claim is more problematic. As MSPRC has opted not to appear in this proceeding, the court will not direct the petitioner to retain funds for any additional claim that it might make. However, it appears that MSPRC might have the right to decline to submit to the jurisdiction of a state court and still have the right to pursue its claim in federal court. This is so because absent permissible waiver, an instrumentality of the United States government "is not subject to judicial process except to the extent indicated in the statute creating it" (Manufacturers Trust Co. v Ross, 252 App Div 292 [1937], and "is immune from suit in a State court" (Shanks v Village Against Rent Increases v Cary, 197 F2d 212, 217 [2d Cir 1952]). Consequently, and notwithstanding the service of the citation on MSPRC seeking to disallow a portion of its claim, the petitioner proceeds at her own risk with regard to any future claim that MSRPC might pursue for the outstanding interest in the sum of $729.53 or for any other amount. [*2]

The net distributable proceeds may be paid to the daughter.

Submit decree.

SURROGATE Lee L. Holzman