Gunshot Victim

In Kelly v. Norgate Business Associates, a case that originated in the Bronx Supreme Court and went up on appeal, a gunshot victim was able to proceed to a jury trial in his action to recover damages against the building owner and its security company after he was shot in an apartment building lobby. The victim was visiting a friend in the building. When he entered he found the locks broken and the security guard never asked him to sign in. There was a group of 10 to 12 men in the lobby near the guard. When the victim left the the building, a fight broke out and the victim was shot, while the guard did nothing but call police only after shots were fired. The Appellate Division ruled that the victim may recover as a third-party intended beneficiary of the security contract between the building owner and the security company where there was evidence that security officers were to safeguard lives and not just property. It also noted the building owner may also be found liable as a jury may find the assailant was an intruder who entered and exited the building through the broken doors. www.foleygriffin.com

Medicaid Liens

MEDICAID LIENS - Fergeson v. IHB Realty Inc. In this case, plaintiff moved to modify a prior court order awarding $40,000 to New York City in full satisfaction of its asserted medicaid lien arguing the settlement should be set aside based on the recent ruling in Ark. Dept. of Health and Human Services, et al. v. Ahlborn asserting the holding made it clear the federal medicaid law and its anti-lien provision prohibited the recovery of medicaid liens from torts proceeds exceeding the medical expenses portion. The court stated the facts of this case did not run afoul of Ahlborn, noting all concerned parties were aware the matter was sent to arbitration with the court reserving the power to set liens. It noted it was clear liens would be deducted from the settlement regardless of any specific designation. The court directed counsel to negotiate a lesser compromise figure with the Department of Social Services which it agreed to set as the medicaid lien portion of the award in its order, and the amount of the reduced lien became the designated medical costs allocation in the prior settlement order, and pursuant to Ahlborn, the only amount recoverable by DSS. Thus, plaintiff's motion was denied.