Drypolcher v. New York Telephone Co.

• Decision Date: 11 December 1981
• Citation: 85 A.D.2d 895,446 N.Y.S.2d 728
• Parties: William C. DRYPOLCHER and Carolyn Drypolcher, Appellants, v. NEW YORK TELEPHONE COMPANY, Third-Party Lienor, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 728

446 N.Y.S.2d 728

85 A.D.2d 895

William C. DRYPOLCHER and Carolyn Drypolcher, Appellants, v. NEW YORK TELEPHONE COMPANY, Third-Party Lienor, Respondent.

Supreme Court, Appellate Division Fourth Department.

Dec. 11, 1981.

Birnbaum & Manaker, P. C. by Paul Giancola, Syracuse, for appellants.

Costello, Cooney & Fearon by Vincent O'Neil, Syracuse, for respondent.

Before DILLON, P. J., and CALLAHAN, DOERR, DENMAN and SCHNEPP, JJ.

MEMORANDUM:

Plaintiff sustained a work-related injury to his right knee which was thereafter negligently treated. Plaintiff received $31,861.23 in workers' compensation benefits, including $18,089 for permanent disability and $13,772.23 for medical expenses. He also recovered $90,000 in settlement of a malpractice action arising out of the treatment of his original injury. The self-insured employer, New York Telephone Company, thereupon asserted a lien against the proceeds for $31,861.23 (Workers' Compensation Law, § 29, subd. 1). Plaintiff sought to have the lien reduced, but the court refused to do so, except for attorney's fees.

The court erred by refusing to reduce the lien. When an injured employee obtains workers' compensation benefits and a malpractice recovery, the employer is liable for the injury "apart from the malpractice" (Matter of Parchefsky v. Kroll Bros., 267 N.Y. 410, 418, 196 N.E. 308). As conceded by New York Telephone, a lienor is entitled to recoup only those monies expended as a result of the malpractice (Cardillo v. Long Is. Col. Hosp., 86 Misc.2d 438, 440, 382 N.Y.S.2d 642). To ascertain this sum a hearing was conducted, at which plaintiffs called two medical experts, who were cross-examined by New York Telephone. Thereafter the court made factual findings generally favoring plaintiffs. Based on these findings, the court should have reduced the lien.

We note first, that the employer may not recoup any sums expended prior to the occurrence of the malpractice (Matter of Parchefsky v. Kroll Bros., supra, 267 N.Y. at pp. 417-418, 196 N.E. 308), in this case the date that the infection was diagnosed (March 8, 1972). Similarly, the uncontroverted testimony established that the second operation to remove the prosthesis was necessitated by the infection not the negligence in treating the infection. Therefore the expenses of the second operation and the ensuing hospitalization (April 2, 1972-April 23, 1972) may not be recouped either. Turning to the two subsequent hospitalizations, the medical...