U.S. Gypsum Co. v. Riley-Stoker Corp., PILEY-STOKER

• Decision Date: 15 May 1958
• Docket Number: PILEY-STOKER
• Citation: 174 N.Y.S.2d 18,11 Misc.2d 572
• Parties: UNITED STATES GYPSUM COMPANY, Plaintiff, v.CORPORATION, Defendant.
• Court: New York Supreme Court

Page 18

174 N.Y.S.2d 18

11 Misc.2d 572

UNITED STATES GYPSUM COMPANY, Plaintiff, v. PILEY-STOKER CORPORATION, Defendant.

Supreme Court, Genesee County.

May 15, 1958.

Judd, Stakel & Suttell, Batavia, for plaintiff.

Reilly, McLouth, Lines & Wilkens, Rochester, for defendant.

CATALANO, Justice.

The defendant moves for an order striking out of the complaint, pursuant to Rule 103 of the Rules of Civil Practice, the following matters as 'frivolous, irrelevant and redundant,' from paragraph 18, '* * * and that the said Thomas G. Steele is entitled to the recovery herein or a portion thereof over and above the amounts for compensation, hospital and medical expenses heretofore or hereafter paid by the plaintiff,' and from paragraph 19, '* * * the said Thomas G. Steele was damaged * * *'.

The complaint alleges, in effect, a cause of action under Section 29 of the Workmen's Compensation Law based upon an accident on June 6, 1955, resulting in personal injuries to the plaintiff's employee, Thomas G. Steele, at the plaintiff's plant in Oakfield, Genesee County, New York. It further alleges that Mr. Steele suffered severe burns caused by the defendant's negligence in installing a steam generating unit; that he received compensation under an award made June 21, 1956 that on January 22, 1958, the plaintiff notified him that a failure to commence an action against this defendant would result in an assignment of this cause of action to the plaintiff in accordance with the Workmen's Compensation Law; that he failed to do so.

The defendant argues that the motion be granted upon the authority of one case, nemely, Commissioners of State Insurance Fund v. E. T. Clark Carting Co., Inc., 274 App.Div. 559, 86 N.Y.S.2d 313, 314, in which the Fourth Department granted, by a divided court of four to one, a somewhat similar motion, concerning a complaint which '* * * sets out subdivision 2 of Section 29 of the Workmen's Compensation Law in part which provides that in event of a recovery in excess of compensation awarded and medical expenses and expenditures necessary to effect the recovery, the carrier shall pay two-thirds of the excess to the injured person * * *' and '* * * alleges that the plaintiffs 'and the aforementioned Thomas C. Ansley' (the injured employee) have been damaged.' (Parenthetic words supplied.) The only case cited by the Fourth Department was a Third Department case, Skakandy v. State of New York, 274 App.Div. 153, 80 N.Y.S.2d 849, affirmed 298 N.Y. 886, 84 N.E.2d 804, which had nothing to do with Rule 103 of the Rules of Civil Practice. The Clark case was cited with approval on a different point of law by a unanimous Fourth Department, Goldman, J., speaking for the Court, in Marmet v. Rankins, 4 A.D.2d 485, 487, 167 N.Y.S.2d 194, 196, decided in 1957.

The plaintiff urges that the case of Liberty Mutual Insurance Co. v. American Stevedores, Inc., 278 App.Div. 661, Case #3, 102 N.Y.S.2d 465, decided by the Second Department should prevail. The Second Department, in a unanimous memorandum, stated, in part, 278 App.Div. at page 661, 102 N.Y.S.2d at page 465: 'Order denying motion to strike out so much of the 16th paragraph of the complaint as alleges that the injured party has an interest in the outcome and result of the action, insofar as appealed from, affirmed with $10 costs and disbursements. The interest of the injured party is as material as if he were bringing the action. To hold this factor to be unnecessary would make it appear that the insurer was endeavoring to collect and retain for himself all of the damages for the injury in excess of its payments by way of compensation and expenses.'

In Commissioner of State Insurance Fund v. Wilaka Construction Company, Inc., 201 Misc. 148, 111 N.Y.S.2d 189, Steuer, J., sitting at Special Term of the Supreme Court, New York County, considered this conflict between the Fourth and Second Departments, saying, 201 Misc. at page 149, 111 N.Y.S.2d at page 190: '* * * It is not unlikely that a jury would be more sympathetic to a claim in which they knew the injured person would participate than they would to an insurance carrier alone.' 'In view of the contradictory attitudes which are the basis of the rules regarding what the jury should be told, attitudes running from realistic cynicism to blind faith, it is difficult to say which determination would fit the existing pattern best. The assumption that the jury will decide in accordance with the instructions would render the allegation unnecessary. It is on this basis that the allegation is stricken and the motion granted.' On appeal, the First...