Commissioners of State Insurance Fund v. McCarthy

CourtUnited States State Supreme Court (New York)
Writing for the CourtSAUL S. STREIT
Citation234 N.Y.S.2d 333,36 Misc.2d 956
Decision Date03 October 1962
PartiesCOMMISSIONERS OF the STATE INSURANCE FUND, Plaintiffs, v. Geraldine McCARTHY and Parnell J. T. Callahan, Defendants.

Page 333

234 N.Y.S.2d 333
36 Misc.2d 956
COMMISSIONERS OF the STATE INSURANCE FUND, Plaintiffs,
v.
Geraldine McCARTHY and Parnell J. T. Callahan, Defendants.
Supreme Court, Special Term, New York County, Part I.
Oct. 3, 1962.

Page 334

[36 Misc.2d 957] 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 [36 Misc.2d 958] 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...

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2 practice notes
  • Comm'rs of the State Ins. Fund v. Augusto Garcia, Scalzi & Nofi PLLC, 003-MG
    • United States
    • United States State Supreme Court (New York)
    • 6 Agosto 2015
    ...be personally liable for a § 29 lien Plaintiffs' counsel cites to the holdings in Commissioners of the State Insurance Fund v. McCarthy, 36 Misc 2d 956, 234 N.Y.S.2d 333 [Sup. Ct. NY Co.1962]; and State Insurance Fund v. Parilla, 31 Misc 2d 835, 225 N.Y.S.2d 236 [Mun. Ct. NYC, 1961]. Defens......
  • Comm'rs of the State Ins. Fund v. Augusto Garcia, Scalzi & Nofi PLLC, 003-MG
    • United States
    • United States State Supreme Court (New York)
    • 6 Agosto 2015
    ...be personally liable for a § 29 lien Plaintiffs' counsel cites to the holdings in Commissioners of the State Insurance Fund v. McCarthy, 36 Misc.2d 956, 234 N.Y.S.2d 333 [Sup.Ct., N.Y.Co.1962] ; and State Insurance Fund v. Parrilla, 31 Misc.2d 835, 225 N.Y.S.2d 236 [Mun.Ct., N.Y.Co., 1961].......
2 cases
  • Comm'rs of the State Ins. Fund v. Augusto Garcia, Scalzi & Nofi PLLC, 003-MG
    • United States
    • United States State Supreme Court (New York)
    • 6 Agosto 2015
    ...be personally liable for a § 29 lien Plaintiffs' counsel cites to the holdings in Commissioners of the State Insurance Fund v. McCarthy, 36 Misc 2d 956, 234 N.Y.S.2d 333 [Sup. Ct. NY Co.1962]; and State Insurance Fund v. Parilla, 31 Misc 2d 835, 225 N.Y.S.2d 236 [Mun. Ct. NYC, 1961]. Defens......
  • Comm'rs of the State Ins. Fund v. Augusto Garcia, Scalzi & Nofi PLLC, 003-MG
    • United States
    • United States State Supreme Court (New York)
    • 6 Agosto 2015
    ...be personally liable for a § 29 lien Plaintiffs' counsel cites to the holdings in Commissioners of the State Insurance Fund v. McCarthy, 36 Misc.2d 956, 234 N.Y.S.2d 333 [Sup.Ct., N.Y.Co.1962] ; and State Insurance Fund v. Parrilla, 31 Misc.2d 835, 225 N.Y.S.2d 236 [Mun.Ct., N.Y.Co., 1961].......

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