2006 New York Code - Liens For Public Assistance And Care On Claims And Suits For Personal Injuries.

 
    §  104-b. Liens for public assistance and care on claims and suits for
  personal injuries. 1. If a recipient of public assistance and care shall
  have a right of action, suit,  claim,  counterclaim  or  demand  against
  another  on account of any personal injuries suffered by such recipient,
  then the  public  welfare  official  for  the  public  welfare  district
  providing  such assistance and care shall have a lien for such amount as
  may be fixed by the public welfare official not exceeding, however,  the
  total  amount  of  such  assistance  and  care  furnished by such public
  welfare official on and after the date when such injuries were incurred.
    The welfare commissioner shall  endeavor  to  ascertain  whether  such
  person,  firm or corporation alleged to be responsible for such injuries
  is insured with a liability insurance company, as the case may  be,  and
  the name thereof.
    2.  No  such lien shall be effective, however, unless a written notice
  containing the name and address of the injured recipient, the  date  and
  place  of  the accident, and the name of the person, firm or corporation
  alleged to be liable to the injured party for  such  injuries,  together
  with a brief statement of the nature of the lien, the amount claimed and
  that  a  lien  is  claimed  upon  the said right of action, suit, claim,
  counterclaim or demand by the public welfare official be served prior to
  the payment of any moneys to  such  injured  party,  by  certified  with
  return receipt or registered mail upon such person, firm or corporation,
  and  his or her, its or their attorney, if known, and upon any insurance
  carrier which has insured such person, firm or corporation against  such
  liability.  A copy of the notice of lien shall be mailed to such carrier
  at least twenty days prior to the date on which  such  carrier  makes  a
  payment  to  the  injured  party.  Except  as  against such carrier, the
  effectiveness of the lien against any other party shall not be  impaired
  by the failure to mail the required notice to such carrier. In addition,
  a  true  copy  of  such  notice  shall  be served by regular mail to the
  welfare recipient and to his or her attorney,  if  known.  Such  mailing
  shall  be  deemed  to  be  effective,  notwithstanding any inaccuracy or
  omission, if the information contained therein shall  be  sufficient  to
  enable  those  to  whom  the  notice  is  given  to identify the injured
  recipient and the occurrence upon which his or her claim for damages  is
  based.
    3.  Upon  the  service  of  the notice, as aforesaid, the local public
  welfare official shall file a true copy thereof in  the  office  of  the
  clerk  of  the county in which his office is located, and, thereupon the
  lien of the public welfare official in the amount therein  stated  shall
  attach  to any verdict, decision, decree, judgment, award or final order
  in any suit,  action  or  proceeding  in  any  court  or  administrative
  tribunal of this state respecting such injuries, as well as the proceeds
  of  any  settlement  thereof,  and the proceeds of any settlement of any
  claim or demand respecting such injuries prior to suit or action.
    4. An amended notice of lien may be served and filed  by  such  public
  welfare  official  in  the  same manner and subject to the provisions of
  this section governing the notice of lien originally  served  and  filed
  pursuant to this section.
    5.  (a)  The  person,  firm,  corporation or insurance carrier, having
  notice that a social services official has served and filed a notice  of
  lien,  and  intending  to make payment on the personal injury claim upon
  which the lien was filed, shall notify the social services  official  by
  certified  or  registered mail, at least ten days prior to the date such
  payment is proposed to be made, of the amount and date thereof.
    (b) Notwithstanding any inconsistent provision of  this  section,  the
  social  services  official  shall  have  the  right to serve and file by
  certified or registered mail, within five days  after  receipt  of  such
  notice, excluding Saturdays, Sundays, and holidays, an amended notice of
  lien  to  include  the amount of public assistance and care furnished to
  the recipient after the date such official served and filed  the  notice
  of lien or the last previous amendment thereof.
    (c)  A  person,  firm,  corporation or insurance carrier that fails to
  give the notice required by paragraph (a) of this subdivision  shall  be
  liable  to the social services official to the same extent that it would
  have been liable had such notice been  given  and  the  social  services
  official  had filed the amended notice of lien provided for in paragraph
  (b) of this subdivision.
    6. Such lien may be enforced by action against  those  alleged  to  be
  liable  for  such  injuries,  as  aforesaid, by the local public welfare
  official in any court of appropriate jurisdiction.
    7. The aforesaid lien shall be valid and effective,  when  the  notice
  thereof  and  the statement are served and filed as aforesaid, and shall
  continue until released and  discharged  by  the  local  public  welfare
  official  by  an  instrument  in  writing  and  filed in the said county
  clerk's office, and no release, payment, discharge  or  satisfaction  of
  any  such  claim, demand, right of action, suit or counterclaim shall be
  valid or effective against such lien.
    8. The county clerk shall, at the expense of  the  county,  provide  a
  suitable  book  with  proper index, to be called the public welfare lien
  docket, in which he shall enter the names of the public welfare official
  and the recipient, the date and place of the accident and  the  name  or
  names of those alleged to be liable for such injuries, as aforesaid.
    9. The provisions of this section to the contrary notwithstanding, the
  lien  herein created shall be subject and subordinate to the lien on the
  amount recovered  by  verdict,  report,  decision,  judgment,  award  or
  decree,  settlement or compromise, of any attorney or attorneys retained
  by any such injured person  to  prosecute  his  claim  for  damages  for
  personal injuries, having or acquiring by virtue of such retainer a lien
  on  the  cause  of action of any such injured person, or on the verdict,
  report, decision,  judgment,  decree  made  in,  or  any  settlement  or
  compromise  of,  any  such  action  or  claim  for  damages for personal
  injuries.
    10. The provisions of this section to  the  contrary  notwithstanding,
  the lien herein created shall be subordinate to the lien of any hospital
  claimed  under  and  to  the  extent  recognized  by section one hundred
  eighty-nine  of  the  lien  law,  but  only  for  treatment,  care   and
  maintenance  given,  prior  to or in excess of the public assistance and
  care granted by the public welfare official.
    11. The provisions of this section shall not be  deemed  to  adversely
  affect  the  right  of  a  public  welfare  official  who  has  taken an
  assignment of the proceeds of any such right  of  action,  suit,  claim,
  counterclaim  or  demand,  to  recover  under  such assignment the total
  amount of assistance and care for which such assignment was made.
    12. The provisions of this section to  the  contrary  notwithstanding,
  the  lien  herein  created  shall not apply with respect to any claim or
  benefits payable to the recipients of any form of public  assistance  or
  care,  part  of which is paid for by the government of the United States
  or any agency thereof when, in the opinion  of  the  commissioner,  such
  lien would jeopardize the continuation of such federal contribution.
    13.  The  provisions  of this section to the contrary notwithstanding,
  the public welfare official may in his discretion release to the injured
  person an amount not to exceed the cost of two years'  maintenance  from
  the lien herein created.
    14.  Any  inconsistent  provision  of this chapter or of any other law
  notwithstanding, a social services official may  not  assert  any  claim
  under  any  provision  of  this  chapter  to  recover payments of public
  assistance  if  such  payments  were   reimbursed   by   child   support
  collections.
    This  section shall not apply to any claim or award which is or may be
  allowed pursuant to the provisions of the workmen's compensation law  or
  the volunteer firemen's benefit law.