N.Y. Social Services Law § 104-b: 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.

In all such cases, notice of the commencement of such an action shall be

served upon the public welfare district that has provided or is

providing such assistance and care, or upon the department of health.

The 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 workers' compensation law or

the volunteer firefighters' benefit law.