(dissenting). The infant plaintiff received $140,000 in settlement of a personal injury action for lead paint poisoning. The parties did not allocate any portion of this amount to reimburse past medical expenses. Contrary to the majority’s position, I would find that pursuant to the holding in Baker v Sterling (39 NY2d 397), Social Services Law § 104 (2) precludes DSS from recouping its $12,857.06 Medicaid lien from the settlement. Social Services Law § 104 (2) provides.: “No right of action shall accrue against a person under twenty-*35one years of age by reason of the assistance or care granted to him unless at the time it was granted the person was possessed of money and property in excess of his reasonable requirements, taking into account his maintenance, education, medical care and any other factors applicable to his condition.” (Emphasis supplied.)
In Baker, the Court of Appeals concluded that when a Medicaid recipient is younger than 21, only that portion of a settlement allocated to past medical expenses is “in excess of * * * reasonable requirements” pursuant to Social Services Law § 104 (2), and thus subject to recoupment by DSS (Baker v Sterling, supra, at 406). Two later Court of Appeals decisions, Cricchio v Pennisi (90 NY2d 296) and Calvanese v Calvanese (93 NY2d 111, cert denied sub nom. Callahan v Suffolk County Dept. of Social Servs., — US —, 120 S Ct 323), defined DSS’s recoupment rights more expansively with respect to adult plaintiffs, but both decisions specifically reaffirmed the principle articulated in Baker, that Social Services Law § 104 is the statute which creates the agency’s right to recoup payments from an infant, subject to the limitations set forth in section 104 (2) (see, Cricchio v Pennisi, supra, at 307; Calvanese v Calvanese, supra, at 120). Moreover, the Third Department’s contrary holding in Gold v United Health Servs. Hosps. (261 AD2d 67), interpreting Social Services Law § 366 (4) (h) (1) and § 367-a (2) as superseding Baker, conflicts with Calvanese, which was also decided after these statutes were enacted.
In a situation where the amount of a settlement itself indicates an intent to reimburse past medical expenses, remand for a hearing would be appropriate to determine the agency’s right to recoupment (see, Baker v Sterling, supra, at 407; compare, McClenahan v Farber, 247 AD2d 449, 450 [“In light of the $5,000,000 settlement amount, it is almost inconceivable that no part of the settlement proceeds was attributable to past medical expenses”], with Temple v Doran, 181 Misc 2d 637 [hearing not required where settlement amount is relatively small, and medical proof indicates that plaintiff suffers from serious, permanent injuries]). Based upon the facts presented, however, I would find that Social Services Law § 104 (2) requires that the agency’s lien be vacated.
Sullivan, P. J., Nardelli and Wallach, JJ., concur with Friedman, J.; Mazzarelli, J., dissents in a separate opinion.
Order, Supreme Court, New York County, entered on or about July 6, 1998, reversed, on the law, without costs, the *36lienholder’s motion to vacate the lien denied, and the case remitted to Supreme Court, New York County, for further proceedings in accordance with this Court’s opinion.