Cardillo v. Long Island College Hospital

• Decision Date: 13 April 1976
• Citation: 382 N.Y.S.2d 642,86 Misc.2d 438
• Parties: Thomas CARDILLO et al. v. LONG ISLAND COLLEGE HOSPITAL et al.
• Court: New York Supreme Court

Page 642

382 N.Y.S.2d 642

86 Misc.2d 438

Thomas CARDILLO et al. v. LONG ISLAND COLLEGE HOSPITAL et al.

Supreme Court, Special Term, Kings County, Part I.

April 13, 1976.

Brent & Berkowitz, New York City, for plaintiff.

Menagh, Trainor & Rothfeld, New York City, for Electrical Employers Self Ins. Safety Plan.

MEMORANDUM

MURRAY T. FEIDEN, Justice.

Motion inaccurately designated by plaintiff as a motion to 'renew and reargue' his previous application to vacate the workmen's compensation lien. Such previous application was denied. The present application is different from the relief sought in the original motion. Now the plaintiff moves to apportion that part of the workmen's compensation payments sttributable to the malpractice settlement and an apportionment of the attorney's fee for recovery of a portion of the lien. The court will entertain such application.

The plaintiff sustained his injuries on November 4, 1968 when he fell 25 feet at a construction site. The injuries consisted of multiple fractures, including a fracture and dislocation of the right ankle.

He was taken to the Long Island College Hospital, one of the defendants, and there received extensive treatment. It appears that the malpractice complained of concerned only the treatment rendered for the fracture and dislocation of the right ankle. The malpractice action was, nevertheless, settled for $40,000.00.

The compensation carrier paid plaintiff the sum of $18,183.45 in statutory benefits (including wages) and also paid $7,933.73 for medical treatment, a total of $26,117.18. It contends that since the settlement in the malpractice action exceeds the amount of the lien, it is entitled to full payment of the lien on the strength of section 29 of the Workmen's Compensation Law. It is there provided that an employee, who has been wrongfully injured by another, not in the same employ, may pursue his remedy against such other, subject to the provisions of the statute.

'In such case (says § 29), The * * * carrier (is) liable for the payment of such compensation as the case may be (and) Shall have a lien on the proceeds of any recovery from such other, whether by judgment, settlement or otherwise, after the deduction of the reasonable and necessary expenditures, including attorneys' fees, incurred in effecting such recovery, To the extent of the total amount of compensation awarded * * * by this chapter * * * And the expenses for medical treatment paid * * * by it and To such extent such recovery shall be deemed for the benefit of such fund' (emphasis supplied).

In seeking to define the rights of the parties here, the court must look to the spirit and the letter of the statute.

Both sides have alluded to the Matter of Parchefsky v. Kroll Bros. Inc., 267 N.Y. 410, 196 N.E. 308, in interpreting the statute and in support of their contentions.

That case, because of its general discussion of the issues involved, lends itself to quotation out of context to support conflicting viewpoints. It is a case which must be read in its entirety in order to fully understand it and draw from it...