Majority
p. 909W. Michael Woodhouse, as Commissioner of the Livingston County Department of Social Services, Respondent, v John McCarthy, Appellant, et al., Defendant. [604 NYS2d 460]
—Order unanimously affirmed without costs. Memorandum: Supreme Court properly concluded that plaintiff may seek recoupment of payments for medical assistance by using remedies provided in article 10 of the Debtor and Creditor Law (see, Crabb v Estate of Mager, 66 AD2d 20 ; Matter of Rhodes, 148 Misc 2d 744 ; Bandas v Emperor, 121 Misc 2d 192 ). Dismissal of the action was not required because of plaintiff’s failure to name the estate of Edna McCarthy as a defendant. The proper remedy for nonjoinder, as Supreme Court determined, was to direct plaintiff to petition Surrogate’s Court for the appointment of a fiduciary to represent the estate so that the estate may be joined as a party (see, McLaughlin v McLaughlin, 155
p. 910
AD2d 418 ). (Appeal from Order of Supreme Court, Livingston County, Cicoria, J. — Nonjoinder.) Present — Callahan, J. P., Green, Fallon, Boomer and Davis, JJ.
Cases cited
- Crabb v. Estate of Mager 66 AD2d 20 p. 909
- In re the Estate of Rhodes 148 Misc 2d 744 p. 909
- Bandas v. Emperor 121 Misc 2d 192 p. 909