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Matter of Grillo 2008 NY Slip Op 30532(U) February 20, 2008 Surrogate's Court, Nassau County Docket Number: 0341317/2007 Judge: John B. Riordan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------------------------x In the Matter of the Application of MARK A. GRILLO and LYNN H. SWANSON-GRILLO, as Co-Administrators of the Estate of MARK S. GRILLO, Deceased, to Determine the Validity and Enforceability of a Claim Against the Estate. --------------------------------------------------------------------------x

File No. 341317 Dec. No. 780

This is a proceeding brought by Mark A. Grillo and Lynn H. Swanson-Grillo (the Grillos), in their capacity as co-administrators of the estate of Mark S. Grillo (Mark), their deceased son, to determine the validity and enforceability of a claim by the Nassau County Department of Social Services (DSS) for repayment of Medicaid assistance rendered to Mark during his lifetime. Before the court are the Grillos' motion and DSS's cross-motion for summary judgment. Specifically, the Grillos seek an order striking DSS's answer to the petition and determining that the amount of the lien is limited to Medicaid assistance expended after the creation and funding of a supplemental needs trust for Mark's benefit. DSS seeks an order dismissing the petition and determining that DSS's claim is valid and enforceable in its entirety. Mark was born a triplet on July 4, 1995. As a result of a procedure he underwent at the age of three months at Long Island Jewish Medical Center, he suffered from severe cerebral palsy and required twenty-four-hour-a-day assistance for all of his daily living activities. The Grillos, individually and as Mark's parents and natural guardians, sued Long Island Jewish Medical Center and Steven J. Schneider, M.D. in Supreme Court, Queens County. The action was settled for a total of $4,000,000 pursuant to an infant's compromise order signed on September 29, 2003

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by the Honorable Alan LeVine and entered in the office of the Queens County Clerk on October 15, 2003. According to the terms of the order, the Grillos, as Mark's parents and natural guardians, were directed and authorized to create the Mark Grillo Supplemental Needs Trust (SNT) and appointed as its co-trustees. The order also directed the Grillos to pay the net settlement funds in the amount of $2,412,698.551 to the SNT jointly with Charles Schwab & Co., Inc., in an account held at Charles Schwab & Co., Inc. Further, the infant's compromise order directed the payment of $500,000 of the settlement proceeds to DSS "as and for payment and satisfaction" of an existing medicaid lien in the amount of $845,218.49 asserted by DSS. The sum of $500,000 was paid to DSS on March 15, 2004. The Grillos,2 as the parents and guardians of Mark, are the grantors, as well as the trustees of the SNT. The trust agreement was signed on December 16, 2003. According to its terms, the SNT was to terminate on Mark's death and the trustees were to distribute any principal and accumulated interest, in relevant part, as follows: The New York State Department of Social Services, or other appropriate Medicaid entity within New York State[,] shall be reimbursed for the total Medicaid Assistance provided to MARK GRILLO during his lifetime (less a credit for any amounts previously paid in satisfaction or partial satisfaction of any social services lien), as consistent with Federal and State Law. . . .

As part of the settlement, the Grillos received $500,000 for their derivative cause of action. Their attorneys received $545,855.39 in legal fees and $41,446.06 for costs and disbursements. At some point prior to the creation and funding of the SNT, the Grillos were appointed by Supreme Court, Nassau County, as co-guardians of Mark's person and property under Article 81 of the New York Mental Hygiene Law. 2
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All remaining principal and accumulated interest shall be paid to the legal representative of the Estate of the Beneficiary [Mark] (SNT

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