Opinion
November 19, 1993
Appeal from the Supreme Court, Livingston County, Cicoria, J.
Present — Callahan, J.P., Green, Fallon, Boomer and Davis, JJ.
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 A.D.2d 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 A.D.2d 418).