Friello v. Black & Decker Mfg. Co.

• Citation: 16 A.D.2d 792,228 N.Y.S.2d 100
• Parties: Nicholas FRIELLO and John Mitchell, Respondents, v. The BLACK & DECKER MANUFACTURING CO. and Norton Company, Defendants, and The Carborundum Company, Defendant-Appellant.
• Decision Date: 07 May 1962
• Court: New York Supreme Court Appellate Division

Page 100

228 N.Y.S.2d 100

16 A.D.2d 792

Nicholas FRIELLO and John Mitchell, Respondents, v. The BLACK & DECKER MANUFACTURING CO. and Norton Company Defendants, and The Carborundum Company Defendant-Appellant.

Supreme Court, Appellate Division, Second Department.

May 7, 1962.

Terhune, Gibbons & Mulvehill, New York City, for appellant; James M. McLaughlin, Jr., New York City, of counsel.

Louis A. Willner, New York City, for respondents; Harry H. Lipsig, New York City, of counsel.

Before BELDOCK, P. J., and KLEINFELD, CHRIST, BRENNAN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In a negligence action by plaintiffs pursuant to statute (Workmen's Compensation Law, § 29, subds. 1, 2), to recover from third parties (other than their employer, Colonial Sand & Stone Company) damages sustained by them in the course of their employment, in which one of the third parties, defendant Carborundum Company, asserted the defense that the plaintiffs failed to commence the action within the time prescribed by said statute and that under its provisions such failure operated as an assignment to the employer or to its workmen's compensation insurance carrier of the causes of action alleged in the amended complaint and barred plaintiffs from now prosecuting them, said defendant appeals from the following three orders of the Supreme Court, Kings County: (1) an order dated May 10, 1961, which denied its motion, under rule 113 of the Rules of Civil Practice, for summary judgment dismissing the amended complaint as to it; (2) an order dated June 5, 1961, which denied its motion for reargument; and (3) an order dated July 18, 1961, which denied its motion to resettle the said order of June 5, 1961 so as to state specifically that it denied defendant's motion for 'rehearing and reargument.'

Order of May 10, 1961 denying summary judgment, and order of July 18, 1961 denying resettlement, affirmed, with one bill of ten dollars costs and disbursements.

Appeal from order of June 5, 1961 denying reargument dismissed; such order is not appealable.

The only issues presently involved are those raised by the asserted defense of the defendant Carborundum Company that the causes of action are barred by the statute (Workmen's Compensation Law, § 29, subd. 2) on the ground that they were automatically assigned to the compensation insurance carrier of the plaintiffs' employer.

As a condition precedent to such assignment, the statute requires the service within a specified time, either in person or by registered mail, of a notice upon the injured person apprising him of his right to sue a third person within the time prescribed by the statute. In purported compliance with the statute, said defendant's insurance carrier (who is also the insurance carrier for plaintiffs' employer) served such notices upon plaintiffs by 'certified mail.'

While we believe that the manner in which such notices were served is sufficient, nevertheless, in view of the unusual circumstances here, we find that triable issues of fact exist concerning the sufficiency of their contents. We reach this conclusion on the basis of the papers submitted on the original motion for summary judgment. We would reach the same conclusion, however, on the basis of the additional papers attempted to be submitted on the subsequent motions.

BELDOCK, P. J., and KLEINFELD, CHRIST and BRENNAN, JJ., concur.

HOPKINS, J., concurs in the dismissal of the appeal from the order of June 5, 1961 denying reargument; concurs in the affirmance of the order of July 18, 1961 denying resettlement; and dissents from the affirmance of the order of May 10, 1961 denying summary judgment and votes to reverse such order and to grant the motion of defendant Carborundum Company for summary judgment dismissing the amended complaint as to it, with the following memorandum:

Each plaintiff in this action filed a claim against his employer under the Workmen's Compensation Law for injuries sustained in the course of his employment as a result of an accident which occurred on June 19, 1958. The plaintiffs began third-party actions against the defendants Black & Decker Manufacturing Co. and Norton Company on January 8, 1959, and January 9, 1959, respectively, within the time limited by the statute (Workmen's Compensation Law, § 29). On March 5, 1959 the employer's compensation insurance carrier sent a letter by certified mail to each plaintiff, stating, in part, that 'It appears that you may have a cause of action against some one other than your employer for injuries' further specifying the time limits prescribed by the statute for the institution of third-party actions, informing them that 'Failure to bring such action within such time will acts as an assignment to the insurance carrier by operation of law,' and setting forth that the letter was sent pursuant to the statute at least thirty days prior to the expiration of the time limited for the commencement of the action. Within the span of approximately a week, the attorney for each plaintiff acknowledged the receipt of the letter and stated that the...