Commissioners of State Insurance Fund v. McCarthy

Decision Date03 October 1962
Citation234 N.Y.S.2d 333,36 Misc.2d 956
PartiesCOMMISSIONERS OF the STATE INSURANCE FUND, Plaintiffs, v. Geraldine McCARTHY and Parnell J. T. Callahan, Defendants.
CourtNew York Supreme Court

Joseph M. Soviero, New York City, for plaintiffs (Arnold M. Herzog and Leonard M. Schnitzer, New York City, of counsel).

David W. Lincoln, New York City, for defendant Geraldine McCarthy .

Eugene A. Wolkoff, New York City, for defendant Parnell J. T. Callahan.

SAUL S. STREIT, Justice.

This is a motion and cross motion for summary judgment.

The action is to recover the balance of payment allegedly due under a lien created by section 227 of the Workmen's Compensation Law and which lien attached to any sum received by the injured party in an independent action for the injuries received.

The defendant, McCarthy, received specific disability benefits from the plaintiff from April 30, 1959 through November 9, 1959 under a disability coverage of her employer pursuant to section 211 of the Workmen's Compensation Law. The disability was allegedly caused by an automobile accident in which her employer was not implicated.

An action was commenced by the injured party against the wrongdoers. During the pendency of the action, the defendant herein received checks covering various amounts.

Notice of lien was allegedly given to the defendant herein as well as to her attorney in the action for negligence. The attorney admits receipt of said notice but the defendant denies the receipt thereof. No amount of lien was stated in such notice. No amount could have been inserted because intermittent payments were being made.

Thereafter, the action against one of the wrongdoers was settled without the consent of the plaintiff herein.

The attorney for McCarthy sent a check for the sum of $225.00 together with an accompanying letter dated December 21, 1962 (Exh. M), to the plaintiff. This letter stated: 'Pursuant to the notice of lien of the State Insurance Fund, and the claim of the Commercial Union Casualty Company, we forward herewith our special account check, drawn to the order of the State Insurance Fund and Geraldine McCarthy and endorsed by Geraldine McCarthy to the State Insurance Fund, covering nine disability payments of $25.00 each, made to Miss McCarthy by the settlement of her claim against the Estate of George Laureano. This check is forwarded in full satisfaction of your liens and claims against Miss Geraldine McCarthy.'

The check was cashed on December 28, 1961 and a letter sent to the said attorney, stating that this is not in full satisfaction of the lien for the payments of $22.18 per week for 26 weeks, representing a total of $576.68. The balance of $351.68 was demanded.

There is no issue as to the sum of $576.68 received by defendant mCcarthy.

The defendants' main contention is that there was a bona fide dispute as to the amount of the lien, and that in any event the amount of $225.00 forwarded and accepted was in full accord and satisfaction.

In Commissioners of the State Insurance Fund v. Sims, 187 Misc. 815, 67 N.Y.S.2d 665, the court held that section 29 of the Workmen's Compensation Law (a section analogous to section 127 involved herein), contains no provision that makes mandatory the service of notice of lien, and that the lien exists by virtue of the statute and...

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