Opinion
Argued October 15, 1984
Decided November 15, 1984
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Daniel H. Prior, Jr., J.
Paul J. Giancola for appellant.
Robert Abrams, Attorney-General ( Richard J. Dorsey and Peter H. Schiff of counsel), for respondents.
MEMORANDUM.
The order of the Appellate Division should be modified, with costs to the State, to the extent of awarding petitioner $5,079.10 and, as so modified, affirmed.
In brief and on oral argument in our court the State commendably concedes that the amount of its setoff for reimbursement of care furnished appellant subsequent to May 11, 1966 in the amount of $61,335.38 should be reduced by the sum of $5,079.10. Accordingly, the petition should be granted to that extent on consent.
In all other respects we agree with the determinations made by the Appellate Division. We conclude that there is no merit to the several arguments advanced by appellant in our court, namely, that the setoff is barred because of the State's failure to have asserted it in the Court of Claims as a counterclaim to the claim for malpractice filed by appellant in that court, that the State should otherwise be estopped to assert its setoff, and that the State should be precluded from asserting its setoff under the doctrine of unclean hands, and that it was error not to reduce the amount of the State's setoff by a pro rata share of attorney's fees incurred by appellant in the successful prosecution of his malpractice claim in the Court of Claims — in each instance for the reasons stated in the opinion of Justice John T. Casey at the Appellate Division.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order modified, with costs to the State, in accordance with the memorandum herein and, as so modified, affirmed.