Matter of Faulkner

[*1] Matter of Faulkner 2012 NY Slip Op 50993(U) Decided on June 5, 2012 Sur Ct, Bronx County Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 5, 2012
Sur Ct, Bronx County

Estate of Michael Faulkner, Deceased



246A/2007



Richard R. Schmidt, Esq., for Richard R. Schmidt, Administrator

Richard H. Dreyfuss, Esq., for the Commissioner of the Department of Social Services of the City of New York

Lee L. Holzman, J.

In this accounting proceeding, the court previously denied a motion by the Department of Social Services of the City of New York (DSS) seeking leave to file objections to the administrator's account over two years after the date timely objections should have been filed (see Matter of Faulkner, 32 Misc 3d 1212 [A], 2011 NY Slip Op 51267 [U] [2011]). DSS now moves for leave to reargue pursuant to CPLR 2221 (d), arguing that the court misinterpreted a multiple page spreadsheet.

This court denied the previous application on the basis that DSS failed to meet the two-pronged test of establishing both a valid excuse for its over two-year period of default and a meritorious claim. Specifically, the administrator presented documentary proof presented that in 2002 the Mental Hygiene Law article 81 guardian for the decedent paid $351,512.93 to a hospital to satisfy its outstanding bill and that after both the decedent's death and DSS received from a supplemental needs trust for the decedent's benefit (SNT) the sum it requested in excess of $1.2 million, DSS stated in a March 20, 2007 letter that the payment it had received was "in full satisfaction of its claim," against the SNT. Thereafter, DSS first filed a claim against the decedent's estate for the sum of $371,167.01; then by letter dated August 20, 2010 stated that its claim was in the amount of $351,512.93, the sum that was paid to the hospital in 2002 by the decedent's article 81 guardian; and then DSS ultimately reverted back to the position that it has a $371,167.01 claim. In light of the facts presented by the administrator, the court held that DSS failed to establish that it had a meritorious claim as its submissions did not clearly explain how the amount allegedly owed was calculated or that, in fact, said amount was owed (see Matter of Faulkner, 32 Misc 3d 1212[A], 2011 NY Slip Op 51267[U]).

In support of its present motion, DSS submits an affirmation of counsel and a separate affidavit by a DSS paralegal in an effort to clarify how it calculated the amount it alleges it is owed. DSS insists it correctly seeks to recoup $371,167.01 and the court should have recognized that the [*2]multiple page spreadsheet known as the claim detail report (OLA CDR), showed total payments by Medicaid in the amount of $1,607,063.60, and that it deducted from that amount not only the sum paid by the SNT but also charges it originally erroneously treated as Medicaid payments made on behalf of the decedent to Coler Goldwater Memorial Hospital. Thus, they argue it is now clear that there is no "double billing" in the sum they now seek to recover.

In opposition the administrator argues, inter alia, that even though DSS always knew the administrator believed DSS had been paid in full, based in part on a letter from DSS stating that its claims had been satisfied, it never bothered to clarify its position and therefore never demonstrated a meritorious claim. The administrator also asserts that the additional affidavit by the paralegal should not be considered as it contains additional facts not submitted on the prior motion.

"[T]he decision whether to entertain reargument is committed to the sound discretion of the court" (Rostant v Swersky, 79 AD3d 456 [2010], citing William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv denied in part, dismissed in part 80 NY2d 1005 [1992], rearg denied 81 NY2d 782 [1993]). "A motion for reargument . . . is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (Foley v Roche, 68 AD2d 558, 567 [1979]).

At the time it sought leave to file late objections to the accounting, DSS knew the administrator had, at minimum, a reasonable basis to believe that DSS had been paid in full; however, it is only in its motion to reargue that DSS attempts to provide any comprehensible explanation of the OLA CDR to justify its claim. The affidavit of the DSS paralegal states that it was only on July 26, 2011, nearly two weeks after this court's prior determination was published, that DSS attempted to remedy this failure by making its calculations understandable.

Accordingly, this court did not "misapprehend any fact" presented at the time of its prior determination; instead, it found that DSS had failed to met its burden of establishing a meritorious claim as it had only submitted indecipherable documents without explanation. In short, if DSS wanted the court to consider the facts and arguments now advanced in the affidavit of Steve Juanico, that affidavit should have been submitted with their original application for leave to file late objections. Furthermore, the instant application tends to support the administrator's original argument that DSS's delay in pursuing its claim flowed more from different employees or agents analyzing the data differently rather than law office inadvertence or failure. On the basis of this record, this decision constitutes the order of the court, denying the motion to reargue.

SURROGATE