Matter of Mahadi Hassan Richard

[*1] Matter of Richard 2009 NY Slip Op 50926(U) [23 Misc 3d 1124(A)] Decided on April 29, 2009 Supreme Court, Queens County Thomas, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through May 29, 2009; it will not be published in the printed Official Reports.

Decided on April 29, 2009
Supreme Court, Queens County

In the Matter of the Final Accounting of Gerald H. Hyman as Trustee of the Supplemental Needs Trust for the Property Needs of Mahadi Hassan Richard, a/k/a Mahadi H. Richard, Mahadi Richard, An Incapacitated Person



8444/01



Richard H. Dreyfuss, Esq.

For the Department of Social Services

of the City of New York

180 Water Street

New York, NY 10038

(212) 331-5989

Howard F. Angione, Esq.

For the Estate of Mahadi Hassan Richard

80-47 192nd Street

Jamaica, NY 11423

(718) 468-7700

Norma Giffords, Esq.

For the Plaintiff, Shalina Boy Runa

2001 Marcus Avenue

Lake Success, NY 10042

Charles J. Thomas, J.

A motion was made by the Guardian for judicial approval of the final accounting in the above captioned matter. In response to the motion The New York City Department of Social Services opposed the accounting as proposed arguing that a question remains regarding the amount the Department of Social Services was entitled and regarding the payment of the remaining installments from the structured settlement.

A framed issue hearing was conducted on the extent of the reimbursement due to the [*2]Department on its claim for Medicaid benefits paid on behalf of Mahadi Hassan Richard. Prior to the hearing the parties stipulated to having the Court review and decide the matter upon stipulated facts and briefs. The Court has done so, makes the following findings of facts and renders the following decision.

Mahadi Hassan Richard, an infant was born with serious birth related injuries. A medical malpractice action against New York City Health and Hospital Corporation was commenced on his behalf by the law firm of Randazzo and Giffords.

Approximately three years after commencing the action the matter was settled before Justice David Goldstein on March 30, 2001. The transcript of that settlement states the following: Mr. Randazzo: The above mentioned action is being settled for the sum of...$1,150,000.00 on behalf of Mahadi Hassan Richard who is named in this action as Shalina Boy Runa.That the balance of the money in said annuity of $865,000.00 shall be placed in said annuity in an A Plus Company as listed by AM Best Company [less] an assignment fee of $500.00....That the terms of this settlement were fully discussed with the natural father of Mahadi Hassan Richard. The father's name is Mohammed Mohasin Miah, who speaks English and also speaks Bengali. [Transcript P. 3]He then interpreted this information to his wife Shalina Boy Runa, who does not fully understand English.After it was fully explained to Mr. Miah, and in the Bengali language to Shalina I have been advised by both of them that the settlement and the terms that we have just put on the record are acceptable...They have been fully advised that this settlement will also call for a non assertion of any lien that may exist and we have been advised that up to the present time, the lien is $357,536.68.That information was communicated to us through...The New York City Department of Health, Medicaid Systems Design and Development.Ms. Wynne [counsel from Heidel, Petoni, Murphy and Bach, LLP representing Defendant, New York City Health and Hospital Corporation]: I just want to put on the record for clarification that the Defendants agree to non assertion of the lien is a Medicaid or Medicare lien. [Transcript P.4 L.1-25.]Ms. Wynne: I just want to put on the record the numbers, just so there is no misunderstanding. The total amount of the settlement that is agreed upon is $1,250,000.00... [Transcript P.6 L.21-25].In addition $864,500.00 will be put into a structure which is being handled by a company called Creative Capital.Mr. Randazzo: ...The terms of the proposed structure are to be for 240 months life, 240 months certain which is the guaranteed amount.It will also run for the life of the annuity as to I guess the infant, Richard. That it is proposed to pay [$6,500.85 monthly] $6,005.85.[*3]So in effect, it is a twenty year guaranteed annuity, also lifetime annuity guaranteed for twenty years. The lifetime being that of Richard and the twenty years being the guarantee.

In case of a premature death the monthly payments of $6,005.85 (corrected) will still continue for the remainder of whatever remains of the twenty year guarantee. [Transcript P. 6L.5-23]

The Court finds, based upon the transcript that at the time of the settlement the parties agreed to the following: 1) that the Defendant, Health and Hospital Corporation agreed not to assert the Medicaid lien up to July 5, 2001, the date of the settlement documents were signed; 2) that the Defendant agreed that the annuity would have a guaranteed minimum life of twenty years, 3) that the amount of the Medicaid lien was $357,536.68.[FN1]

There was nothing in the settlement which required the annuity to be cashed in for a lump sum payment from the annuity. Indeed, while one might expect to pay it from the proceeds of the annuity, the lien could have been paid off by anyone at any time.As for the discrepancies in the final language of the Accumulated Supplemental Needs Trust, it was never the Court's intention to approve a Trust that required repayment of the lien prior to the Stipulation. That amount was waived by New York City and its agencies. New York Health and Hospital Corporation, as the malfeasor, can not enter into a Stipulation which will then be dishonored by another city agency. It would be against public policy to permit a Defendant municipality to settle an action against itself and then argue to the Court that fulfilling its part of the agreement would be against the Medicaid rules. To allow such actions on the part of the city gives it two bites at apple. The first in the discounted amount of medical expenses limiting the injured party to Medicaid care and treatment, then getting the money back after a "premature death" by requiring an advance payment of the annuity and eliminating recovery by the beneficiaries. The city should not be rewarded by the death of someone it has injured.

Additionally, Department of Social Services never moved to modify the Trust Agreement, vacate the Order approving the Trust, or appealed the Order.

Accordingly, the amount of the lien to be repaid is only that amount from the date of the settlement to the date of death of the Incapacitated Person. Said lien shall continue to be paid by the Trustee from the monthly annuity payments. The balance of the annuity shall not be advanced in order to pay off the remainder of the lien.

Submit order. [*4]

Charles J. Thomas, J.S.C. Footnotes

Footnote 1:The Court notes that there is some ambiguity with regard to the amount of the Medicaid lien on March 30, 2001, the date the settlement was accepted and the general release signed. As that amount is not given in the City's brief, and can not be independently ascertained by the Court, the Court will use the amount of the lien effective March 30, 2001, the date of the Stipulation in Court.