W. Michael Woodhouse, as Commissioner of the Livingston County Department of Social Services, Respondent, v. John McCarthy, Appellant, et al., Defendant

W. Michael Woodhouse, as Commissioner of the Livingston County Department of Social Services, Respondent, v John McCarthy, Appellant, et al., Defendant. [604 NYS2d 460] [MAJORITY] —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 AD2d 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 AD2d 418). (Appeal from Order of Supreme Court, Livingston County, Cicoria, J. — Nonjoinder.) Present — Callahan, J. P., Green, Fallon, Boomer and Davis, JJ.