In re Calabrese

In a proceeding pursuant to Mental Hygiene Law article 81, the appeal is from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Kassoff, J.), dated June 12, 1996, as granted the petitioner’s application to establish a supplemental needs trust with certain settlement proceeds prior to the determination of the claim of the State of New York that it is entitled to recover the cost of medical assistance provided to the trust beneficiary pursuant to Social Services Law § 104.

Ordered that the order and judgment is reversed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a hearing and determination in accordance herewith.

Prior to the establishment of a supplemental needs trust that conforms to EPTL 7-1.12, the Supreme Court must determine the claim of the State of New York that it is entitled, under Social Services Law § 104, to recover the cost of medical assistance provided to the trust beneficiary (see generally, Cricchio v Pennisi, 90 NY2d 296). Accordingly, the matter is remitted to the Supreme Court, Queens County, for a hearing and determination on this issue. Sullivan, J. P., Pizzuto, Friedmann and Krausman, JJ., concur.