Joan Hargis, as Executrix of the Estate of Lois Klink, Deceased, Respondent-Appellant-Respondent. v. << (2000)

Claimant, the Cattaraugus County Department of Social Services (DSS), seeks to recoup from respondent, the executrix of the Estate of Lois Klink, $72,787.37 in Medicaid benefits paid by DSS for the nursing home care of Lois Klink's husband, Walter Klink.   Respondent appeals from a decree and order of Surrogate's Court that was superseded by an amended decree and order.   In the exercise of our discretion, we treat the appeal as taken from the amended decree and order (see, CPLR 5520[c] ).   DSS cross-appeals from the amended decree and order.   Respondent contends that the court erred in directing her to reimburse DSS for the Medicaid benefits, while DSS contends that the court erred in awarding it interest at less than the statutory rate and only from the date of the hearing of this matter.

 The court properly determined that DSS is entitled to reimbursement of the Medicaid benefits from the Estate of Lois Klink, who was a “responsible relative” of the recipient and who had sufficient income and resources to provide medical assistance for him (see, Social Services Law § 101[1], [2];  § 104[1];  § 366[3][a];  § 369[2][b][ii];  Commissioner of Dept. of Social Servs. of City of N.Y. v. Fishman, 275 A.D.2d 599, 713 N.Y.S.2d 152;  Commissioner of Dept. of Social Servs. of City of N.Y. v. Spellman, 243 A.D.2d 45, 47-49, 672 N.Y.S.2d 298;  Matter of Imburgia, 130 A.D.2d 658, 658-659, 515 N.Y.S.2d 590;  see also, Matter of Kummer, 93 A.D.2d 135, 178-181, 461 N.Y.S.2d 845;  see generally, Matter of Shah, 95 N.Y.2d 148, 160-162, 711 N.Y.S.2d 824, 733 N.E.2d 1093;  Matter of Craig, 82 N.Y.2d 388, 391-392, 604 N.Y.S.2d 908, 624 N.E.2d 1003).

 The court erred, however, in awarding DSS interest at the rate of only 6%. Pursuant to CPLR 5004, “[i]nterest shall be at the rate of nine per centum per annum, except where otherwise provided by statute.”   Further, DSS should have been awarded predecision interest on its claim, which seeks recoupment on a statutory theory of “implied contract” (see, Social Services Law § 366[3][a] ).   A party recovering damages on a claim for breach of an implied contract is entitled to predecision interest (see, Frederick v. Clark, 162 A.D.2d 863, 864-865, 557 N.Y.S.2d 765, lv. denied 76 N.Y.2d 711, 563 N.Y.S.2d 767, 565 N.E.2d 516, citing Village of Elmira Hgts. v. Town of Horseheads, 234 App.Div. 270, 254 N.Y.S. 418, affd. 260 N.Y. 507, 184 N.E. 70;  Isaacs v. Incentive Sys., 52 A.D.2d 550, 551, 382 N.Y.S.2d 69;  Matter of Kummer, supra, at 182-183, 461 N.Y.S.2d 845).   We thus modify the amended decree and order by vacating those provisions of the ordering and decretal paragraph awarding DSS interest at 6% per annum from June 1, 1999, and by awarding interest at the rate of 9% from the date of each separate payment of medical assistance or, if such dates cannot be ascertained with precision, from the date of death of the recipient or some other “single reasonable intermediate date” upon which damages might be deemed to have been incurred (CPLR 5001[b];  see, Matter of Kummer, supra, at 184-187, 461 N.Y.S.2d 845;  Matter of Stewart, 110 Misc.2d 756, 757, 442 N.Y.S.2d 935), and we remit the matter to Cattaraugus County Surrogate's Court to determine the interest to be awarded.

Amended decree and order unanimously modified on the law and as modified affirmed without costs and matter remitted to Cattaraugus County Surrogate's Court for further proceedings.

MEMORANDUM: