Cianciosi v. Merchants Mut. Ins. Co.
| Decision Date | 19 January 1970 |
| Citation | 61 Misc.2d 867,307 N.Y.S.2d 136 |
| Parties | Leo A. CIANCIOSI, Plaintiff, v. MERCHANTS MUTUAL INSURANCE COMPANY, Defendant. |
| Court | New York Supreme Court |
Peter A. Daniels, Binghamton, for plaintiff.
Robert Eckelberger, Jr., Johnson City, for defendant.
This is an action in which the plaintiff, an attorney, seeks to recover from the defendant, a disability benefits carrier, a proportionate share of his fee for services rendered to a client who was injured in an automobile accident, rather than have his client pay the whole amount of the fee for services from the balance of the settlement sum, the balance left after payment of the lien of the disability benefits carrier. He seeks judgment in the sum of $433.34.
The defendant moves, pursuant to CPLR 3211 (subd. (a), par. 7), for an order dismissing the complaint on the ground that it fails to state a cause of action.
The complaint alleges, and the facts are not disputed, that plaintiff's client, injured in a two-car accident, received disability benefits from the defendant, his employer's disability benefits insurance carrier, at the rate of $50.00 each week for 26 weeks, a total of $1,300.00. The negligence action, a third-party action, commenced by the plaintiff on behalf of his client was settled for $8,500.00. The defendant, pursuant to section 227 of the Workmen's Compensation Law, had a lien in the amount of the benefits paid, $1,300.00, on the proceeds of the settlement. After Settlement of the negligence action there was sent to the defendant by plaintiff, on behalf of his client, the sum of $1,300.00 in satisfaction of the lien. The plaintiff then sent a bill to defendant in the sum of $433.34 and defendant has refused to pay it. The plaintiff's complaint alleges, Inter alia: 'The defendant, at all times hereinafter mentioned, refused and still refuses to pay the plaintiff the fee due him as aforesaid and to that extent, the said defendant has become unjustly enriched in the sum of $433.34.'
Basically, the question for determination on this motion is whether the successful plaintiff's attorney in a third-party action may, under the statute, section 227 of the Workmen's Compensation Law, be allowed a proportionate fee from an employer's disability benefits carrier on so much of a settlement, or on a judgment, that is impressed with a lien pursuant to section 227 of the Workmen's Compensation Law. The question is not whether he should, even in a difficult or expensive liability presentation, be allowed a proportionate fee from the insurance carrier, rather than from the client who received the injuries; nor, indeed, whether the applicable statute contravenes the fundamental notions of equality and fairness, nor whether it is at variance with concepts of justice and fair dealing.
Section 227 of the Workmen's Compensation Law, subdivision 1, states, in...
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Breslin v. Liberty Mut. Ins. Co.
...N.Y.S.2d 528, 533 (Sup.Ct.App.Div.1975), rev'g 78 N.Y.Misc.2d 39, 355 N.Y.S.2d 718 (Sup.Ct.1974); Cianciosi v. Merchant's Mut. Ins. Co., 61 N.Y.Misc.2d 867, 307 N.Y.S.2d 136, 138 (Sup.Ct.1970); Kussack v. Ring Const. Corp., 1 A.D.2d 634, 153 N.Y.S.2d 646, 648 (Sup.Ct.App.Div.1956), aff'd, 4......
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Breslin v. Liberty Mut. Ins. Co.
...lien against and is not entitled to a fee for services rendered in effecting the recovery. See, E.g., Cianciosi v. Merchant's Mut. Ins. Co., 61 Misc.2d 867, 307 N.Y.S.2d 136 (Sup.Ct.1970). The New York law is the same where third-party recovery has been effected after workmen's compensation......
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Breslin v. Liberty Mut. Ins. Co.
...of disability benefits paid. McKinney's Consol.Laws, c. 67, N.Y. Workmen's Comp. Law, § 227 (1965); Cianciosi v. Merchant's Mut. Ins. Co., 61 Misc.2d 867, 307 N.Y.S.2d 136 (Sup.Ct.1970). In contrast, as noted by the trial judge, New Jersey's temporary disability statute contains no specific......
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