Since the dissent recommends a new trial in the interests of justice, see Titlebaum v. Loblaws, Inc., 75 AD2d 985, 985, 429 NYS2d 91, 92 (4th Dep't 1980); Van v. Clayburn, 21 AD2d 144, 249 NYS2d 310 (1st Dep't 1964), it is most appropriate to call the error to the court's attention, so the same mistake will not be made. See e.g. Carpenter v. Saltone Corp., 276 AD2d 202, 716 NYS2d 86 (2d Dep't 2000), where the Appellate Division wrote, at 212, 716 NYS2d at 94, Our reluctance to address the larger issue of whether a Medicaid lien may, in the case of an infant as in the case of an adult, be satisfied from all the proceeds of the settlement of a personal injury action, is founded on our respect for the basic theory underlying the adversarial method of appellate litigation.
"[A] Medicaid lien may not be effectively nullified by the mere expedient of the plaintiff['s] attorney announcing that the settlement relates to pain and suffering only." ( Carpenter v Saltone Corp., 276 AD2d 202, 211 [2nd Dept 2000].) But DSS is not "automatically guarantee[d] at least the partial reimbursement for its medical expenses regardless of the surrounding circumstances."
e agreed proportion that medical expenses bore to the full value of the case to the amount of the settlement, to be an acceptable method of allocation, it did not adopt it as the exclusive method of making the determination. Indeed, in Wos, the Court rejected any "one-size-fits-all" approach to making the calculation ( Wos at 639, 133 S.Ct. 1391 ). Rather, in Ahlborn and later in Wos, the Court merely made clear that where the amount of a lump sum settlement attributable to medical expenses was not established by a verdict or by a stipulation binding on all parties, a judicial resolution of the issue was required ( Wos at 638, 133 S.Ct. 1391 ; Ahlborn at 288, 126 S.Ct. 1752 ).In New York, it has long been recognized that a Medicaid lien will not be defeated by the mere declaration of a plaintiff's attorney that the settlement does not relate to medical expenses ( Matter of Homan v. County of Cattaraugus Dept. of Social Servs., 74 A.D.3d 1754, 1755, 905 N.Y.S.2d 387 [4th Dept.2010] ; Carpenter v. Saltone Corp., 276 A.D.2d 202, 211, 716 N.Y.S.2d 86 [2nd Dept.000] ; Simmons v. Aiken, 100 A.D.2d 769, 770, 474 N.Y.S.2d 41 [1st Dept.1984] ). As we have explained, the court's determination"is not foreclosed by the form of the settlement documents or the language used by the attorneys in the settlement stipulation, if that form and language do not truly reflect the consideration of the settlement, or are chosen merely as a means to defeat DSS' recovery."
We reject both of petitioner's contentions. Even before the Supreme Court issued its decision in Ahlborn, it was settled in New York that "a Medicaid lien may not be effectively nullified by the mere expedient of the plaintiff[s] attorney announcing that the settlement relates to pain and suffering only" ( Carpenter v Saltone Corp., 276 AD2d 202, 211; see Simmons v Aiken, 100 AD2d 769, 769-770). The Supreme Court subsequently held in Ahlborn that federal law prohibits a Medicaid lien from being paid in its entirety from settlement proceeds before any other payments are made in the event that only a portion thereof may fairly be allocated to medical expenses.
Since the dissent recommends a new trial in the interests of justice ( see Titlebaum v. Loblaws, Inc., 75 AD2d 985, 985 [4th Dept 1980]; Van v. Clayburn, 21 AD2d 144 [1st Dept 1964]), it is most appropriate to call the error to the court's attention, so the same mistake will not be made. See e.g. Carpenter v. Saltone Corp. ( 276 AD2d 202, 212 [2d Dept 2000]), where the Appellate Division wrote:
Moreover, in light of the fragmentary nature of the record, the appellants failed to establish their entitlement to a judgment dismissing the petition. The appellants' contentions, raised before the Supreme Court, that the petition was untimely pursuant to CPLR 217 and that the petitioner failed to exhaust his administrative remedies, have not been briefed on appeal and are deemed abandoned ( see Carpenter v. Saltone Corp., 276 AD2d 202, 212; Matter of Calm Lake Dev. v. Town Bd. of Town of Farmington, 213 AD2d 979, 980). The appellants' contention that the determination of the Board of Education, also known as the Department of Education, was correct goes to the merits of the petition and may properly be asserted by the appellants in their answer.
The Court noted that a “Medicaid lien may not be effectively nullified by the mere expedient of the plaintiff's attorney announcing that the settlement relates to pain and suffering only.” ( See id. at *3 [quoting Carpenter v. Saltone Corp., 276 A.D.2d 202, 211, 716 N.Y.S.2d 86 (2d Dept 2000) ]; see also Matter of Homan v. County of Cattaraugus Department of Social Services, 74 A.D.3d at 1755, 905 N.Y.S.2d 387.) Even so, the Court determined that “[w]here, as here, the City is both the holder of the lien and the settling tortfeasor, there is little risk of a scheme by the parties to frustrate the lien asserted by the department for its expenditures' or that the settlement might be consciously structured in such a manner as to deprive the department of reimbursement'.”
(See Court Transcript, dated March 29, 2010, p. 2-3)."Even before the Supreme Court issued its decision in Ahlborn , it was settled in New York that "a Medicaid lien may not be effectively nullified by the mere expedient of the plaintiff['s] attorney announcing that the settlement relates to pain and suffering only" (Carpenter v Saltone Corp., 276 AD2d 202, 211, 716 N.Y.S.2d 86; see Simmons v Aiken, 100 AD2d 769, 769-770, 474 N.Y.S.2d 41). The Supreme Court subsequently held in Ahlborn that federal law prohibits a Medicaid lien from being paid in its entirety from settlement proceeds before any other payments are made in the event that only a portion thereof may fairly be allocated to medical expenses.
( Ahlborn, 547 US at ___, 126 S Ct at 1765.) Furthermore, DSS asserts that the law is well settled in New York that parties to a lawsuit cannot stipulate away Medicaid liens (citing Carpenter v Saltone Corp., 276 AD2d 202 [2d Dept 2000]; Simmons v Aiken, 100 AD2d 769 [1st Dept 1984]). DSS also argues that plaintiff's counsel's instant motion constitutes a breach of his contract with the department to pay $40,000 in reimbursement of the $92,376.