Paschall v. Mooney
| Decision Date | 14 February 1953 |
| Parties | PASCHALL v. MOONEY. |
| Court | U.S. District Court — Southern District of New York |
Harry E. Kreindler, New York City (Lee S. Kreindler, New York City, of counsel), for plaintiff.
William C. Morris, New York City (Charles Bakos, New York City, of counsel), for defendant.
This suit comes on to be heard on motion of the plaintiff to add the Liberty Mutual Insurance Company as a party plaintiff, and on motion of defendant to grant summary judgment to her upon the ground that plaintiff is no longer the real party in interest and that the claim pleaded has been assigned by operation of law to Liberty Mutual Insurance Company. Plaintiff in support of his motion submits a petition and consent of Liberty Mutual that it be joined as a party plaintiff, so that its rights against defendant vis-a-vis plaintiff may be determined in this suit.
The action is brought to recover for injuries plaintiff alleges he sustained on August 8, 1950, in Dutchess County, New York, when he was struck by an automobile owned by the defendant. At the time of the accident, plaintiff was in the performance of his work as an employee of Raymond Concrete Pile Company, a New York corporation, and the liberty Mutual Insurance Company was his employer's compensation insurance carrier.
Plaintiff is a resident of New Jersey; defendant, of New York; jurisdiction is predicated on diversity of citizenship. The action was commenced by the service of the summons and complaint on August 23, 1951, Ragan v. Merchants' Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520, which was more than six months after the first award and acceptance of compensation and not within one year of the date of the accident.
It appears from affidavit of plaintiff's attorneys that plaintiff has made claim for compensation under Workmen's Compensation Law of New York, and under that claim has received an award of $57.60, on December 29, 1950, and of $6.40, on May 4, 1951, and that medical expenses of plaintiff have also been paid by his employer's compensation carrier in the sum of $66.
Defendant by answer pleads as an affirmative defense that plaintiff is not the real party in interest in that Liberty Mutual is now by operation of Section 29(2) of the Workmen's Compensation Law, McK. Consol.Laws, c. 67, the statutory assignee of the claims pleaded in the complaint.
I have held that the amendment to Section 29(2), Chapter 527, Laws of New York 1951, has no retroactive effect. Werkley v. Koninklijke Luchtvaart, etc., D.C., 110 F. Supp. 746. The decision of Judge Holtzoff reported in Commissioners of State Ins. Fund v. United States, D.C.1947, 72 F. Supp. 549, is not applicable and not a holding to the contrary. However, two decisions of the Supreme Court of the State of New York, sitting as a nisi prius court in Kings County, are now cited by plaintiff as bringing into question the correctness of the Werkley decision that the amendment to Section 29(2) has no retroactive effect, — Plumitallo v. 1407 Broadway Corp., 201 Misc. 277, 108 N.Y.S.2d 448, and Olker v. Salomone, Sup., 115 N.Y.S.2d 373. In Plumitallo it was clearly held that the amendment was retroactive; in Olker it was held that the amendment applied to pending litigation and that a compensation carrier may by "tacit agreement" waive "any rights it might have had to institute the action." 115 N.Y.S.2d at page 375.
The Supreme Court wrote in King v. Order of Travelers, 1947, 333 U.S 153, 157, 68 S.Ct. 488, 491, 92 L.Ed. 608, that "* * * a state may shape its own law in any direction it sees fit, and it is inadmissible that cases dependent on that law should be decided differently according to whether...
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