Commissioners of State Ins. Fund v. Stevens

CourtUnited States State Supreme Court (New York)
Writing for the CourtMATTHEW M. LEVY
PartiesCOMMISSIONERS OF the STATE INSURANCE FUND, Plaintiffs, v. James S. STEVENS and Robert E. Delany, Defendants.
Decision Date24 February 1960

Page 615

206 N.Y.S.2d 615
25 Misc.2d 799
COMMISSIONERS OF the STATE INSURANCE FUND, Plaintiffs,
v.
James S. STEVENS and Robert E. Delany, Defendants.
Supreme Court, Special Term, New York County, Part I.
Feb. 24, 1960.

Page 616

[25 Misc.2d 800] Charles G. Tierney, New York City (Gladys M. Foster, Brooklyn, of counsel), for plaintiffs.

Arthur J. Delany, Chester (Robert E. Delany, New York City, of counsel), for defendants.

MATTHEW M. LEVY, Justice.

The defendants moved for change of venue. The plaintiffs cross-moved to retain the venue and for summary judgment striking the answer.

It appears that, on July 10, 1956, the defendant Stevens, an employee of the State Department of Public Works, sustained injuries while in the course of his employment, through the negligence of a third party, Denver Chicago Trucking Co. Stevens made a claim for and was awarded

Page 617

workmen's compensation benefits against the State Insurance Fund, the plaintiffs herein, as the carrier for the employer, to the extent of $1,119.31, being $691.20 for pay compensation and $428.11 for medical treatment. On August 7, 1956, a notice of lien was served by the plaintiffs on the defendant Stevens and on September 24, 1957, a notice of lien was also served on the defendant Delany, who had been retained by defendant Stevens to prosecute a plenary action against the third party. Later, some time prior to December 1958, this third-party action was settled by the defendants for $5,000, whereupon the instant lawsuit was instituted, pursuant to section 29, subd. 1, of the Workmen's Compensation Law, to recover the sum of $1,119.31 allegedly due on the lien. The basis for the suit is that the defendants settled the action without the written consent of the plaintiffs, as required by section 29, subd. 5. There is no claim that there was such written consent, but the defendants assert in their defense that the plaintiffs waived and are estopped from asserting their rights by orally assenting to the settlement. The plaintiffs deny such assent, waiver and estoppel.

It is not necessary for me in this case to decide whether there can be, under the law, such oral assent or such waiver or estoppel of the statutory requirement of a writing, as would be recognized as valid by the court in a plenary suit, as distinguished from enforcement thereof before the Workmen's Compensation Board (see Feiertag v. Postal Telegraph Company [State Industrial Board], 256 App.Div. 866, 9 N.Y.S.2d 63; De Moranville v. Albany Seed Company [State Industrial Board], 268 App.Div. 945,...

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4 practice notes
  • Commissioners of State Ins. Fund v. Crown
    • United States
    • New York Supreme Court — Appellate Term
    • November 12, 1970
    ...the third-party action, who with notice of the lien disbursed the proceeds of the recovery (cf. Com'rs State Insurance Fund v. Stevens, 25 Misc.2d 799, 206 N.Y.S.2d 615; State Insurance Fund v. Parilla, 31 Misc.2d 835, 225 N.Y.S.2d The contention that an accord and satisfaction was effected......
  • State Ins. Fund v. Parrilla
    • United States
    • New York City Municipal Court
    • December 26, 1961
    ...disbursed the proceeds of the recovery. The same conclusion appears to be implicit in Commissioners of State Insurance Fund v. Stevens, 25 Misc.2d 799, 206 N.Y.S.2d 615, where the Court finding no waiver of the lien created by Sec. 29 granted plaintiff's motion for summary judgment against ......
  • Commissioners of State Insurance Fund v. McCarthy
    • United States
    • United States State Supreme Court (New York)
    • October 3, 1962
    ...virtue of the statute and not by reason of a notice given pursuant to the statute. In Commissioners of State Insurance Fund v. Stevens, 25 Misc.2d 799, 206 N.Y.S.2d 615, the court held that a notice of the lien served upon the attorney for the plaintiff in the plenary action was sufficient ......
  • Beary v. Queens County Bar Ass'n
    • United States
    • United States State Supreme Court (New York)
    • September 2, 1960
    ...respects. The essential issue presented by the petition itself is whether the by-laws of the respondent limiting its membership to male [25 Misc.2d 799] attorneys of the State of New York in good standing, residing in Queens County or having offices in the City of New York or an adjoining c......
4 cases
  • Commissioners of State Ins. Fund v. Crown
    • United States
    • New York Supreme Court — Appellate Term
    • November 12, 1970
    ...the third-party action, who with notice of the lien disbursed the proceeds of the recovery (cf. Com'rs State Insurance Fund v. Stevens, 25 Misc.2d 799, 206 N.Y.S.2d 615; State Insurance Fund v. Parilla, 31 Misc.2d 835, 225 N.Y.S.2d The contention that an accord and satisfaction was effected......
  • State Ins. Fund v. Parrilla
    • United States
    • New York City Municipal Court
    • December 26, 1961
    ...disbursed the proceeds of the recovery. The same conclusion appears to be implicit in Commissioners of State Insurance Fund v. Stevens, 25 Misc.2d 799, 206 N.Y.S.2d 615, where the Court finding no waiver of the lien created by Sec. 29 granted plaintiff's motion for summary judgment against ......
  • Commissioners of State Insurance Fund v. McCarthy
    • United States
    • United States State Supreme Court (New York)
    • October 3, 1962
    ...virtue of the statute and not by reason of a notice given pursuant to the statute. In Commissioners of State Insurance Fund v. Stevens, 25 Misc.2d 799, 206 N.Y.S.2d 615, the court held that a notice of the lien served upon the attorney for the plaintiff in the plenary action was sufficient ......
  • Beary v. Queens County Bar Ass'n
    • United States
    • United States State Supreme Court (New York)
    • September 2, 1960
    ...respects. The essential issue presented by the petition itself is whether the by-laws of the respondent limiting its membership to male [25 Misc.2d 799] attorneys of the State of New York in good standing, residing in Queens County or having offices in the City of New York or an adjoining c......

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