Commissioners of State Ins. Fund v. Stevens

• Decision Date: 24 February 1960
• Citation: 206 N.Y.S.2d 615,25 Misc.2d 799
• Parties: COMMISSIONERS OF the STATE INSURANCE FUND, Plaintiffs, v. James S. STEVENS and Robert E. Delany, Defendants.
• Court: New York Supreme Court

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.

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 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, 946, 51 N.Y.S.2d 355, 356; Saponara v. Jill Bros., Inc. [Workmen's Compensation Board], 270 App.Div. 869, 60 N.Y.S.2d 364, leave to appeal denied 270 App.Div. 961, 62 N.Y.S.2d 624). For the answering affidavit submitted by the attorney for the defendants, who is not a party to this action and who was not the attorney who settled the third-party action, is wholly insufficient to defeat plaintiffs' motion for summary judgment. He asserts merely that the plaintiffs have waived their right to the lien of $1,119.31, claiming that, on March 30, 1959, at the time of the closing of the workmen's compensation case (long after the settlement of the third-party action), he was assured by an unnamed representative of the plaintiffs at their New York office, that no demand or request for reimbursement would be made by the plaintiffs, and that, upon the basis of this alleged assurance, the defendants did not oppose the closing of the case before the Board.

No waiver or estoppel has been shown. The alleged acquiescence by the defendants to the closing of the case in workmen's compensation, months after the third-party action had been settled, does not indicate an oral consent by the plaintiffs to the settlement, nor does it provide an adequate consideration for any alleged agreement by them to waive the lien, nor does it constitute an estoppel of plaintiffs as to their claim under the lien. By decision dated April 3, 1959, the case was marked 'closed' by the Workmen's Compensation Board, on the ground that '3rd party action [was] settled [by the defendant Stevens, the claimant] without the consent of the carrier [the plaintiffs]'. It may be that, upon proper proof, the defense interposed in this action may provide a basis for reopening the case before the Board so as to enable the injured claimant to receive deficiency compensation under section 29, subdivision 5, of the Workmen's Compensation Law (cf. Beekman v. W. A. Brodie, Inc. [State Industrial Board], 249 N.Y. 175, 163 N.E. 298), but it cannot raise a triable issue with respect to the instant cause, predicated, as it is, upon section 29,...