Vinson v. Berkowitz
| Decision Date | 23 July 1981 |
| Citation | 83 A.D.2d 531,441 N.Y.S.2d 460 |
| Parties | Willie VINSON, et al., Plaintiffs-Respondents, v. Glen BERKOWITZ, et al., Defendants, and Hartford Insurance Company, Appellant/Lienholder. |
| Court | New York Supreme Court — Appellate Division |
C. M. Diamond, New York City, for plaintiffs-respondents.
L. A. Robusto, New York City, for appellant/lienholder.
Before KUPFERMAN, J.P., and SULLIVAN, CARRO and SILVERMAN, JJ.
Order, Supreme Court, Bronx County, entered on September 17, 1980, permitting plaintiffs-respondents to settle their action against the tortfeasor defendants and directing that the settlement not affect, impair or reduce the rights of the plaintiff Willie Vinson to receive present and future workers' compensation benefits, unanimously modified on the law, without costs to direct the suspension of plaintiff's workers' compensation benefits only in the event the aggregate of such benefits reaches $50,000, and then only until the sum of $16,294.54 is exhausted, and otherwise affirmed.
On December 19, 1978, while making a delivery for his employer, plaintiff, a pedestrian, was struck by a motor vehicle owned and operated by the defendants Berkowitz, as a result of which he suffered serious injuries, including amputation of his right leg at the knee. Plaintiff is presently disabled from employment. Since the accident took place in the course of his employment, plaintiff received, and continues to receive, Workers' Compensation benefits from the Hartford Insurance Company. It is anticipated that he will require additional medical treatment and will be entitled to future compensation benefits for such duration as may be determined under the Workers' Compensation Law.
Having sustained a "serious injury" (Insurance Law § 671plaintiff, a "covered person" (Insurance Law § 671commenced the instant lawsuit as authorized by Insurance Law § 673 and Workers' Compensation Law § 29to recover damages for his non-economic loss. Defendants, through their insurance carrier, offered plaintiff the sum of $25,000, the policy limit of their coverage, in settlement, from which, after deducting attorney's fees and expenses, plaintiff would net $16,294.54. Plaintiff moved for an order pursuant to § 29 of the Workers' Compensation Law permitting him to settle his claim without effect, impairment or reduction of any right to receive present and future compensation benefits as a result of the accident. While acknowledging that it has no lien, Hartford claims the right to suspend future benefits payable to plaintiff until the amount of $16,294.54 is exhausted. Special Term, holding that Hartford had no right to offset against the proposed settlement, granted plaintiff's motion, from which determination Hartford has appealed. 106 Misc.2d 60, 430 N.Y.S.2d 554. We modify and direct the suspension of plaintiff's workers' compensation benefits in the event and after the aggregate of such benefits reaches $50,000, until the sum of $16,294.54 is exhausted.
New York's no-fault automobile insurance law (Insurance Law, Art. XVIII, § 671 et seq., L. 1973, c. 13, § 1, eff. Feb. 1, 1974), subject to certain exceptions not here relevant, eliminated the right to sue for "basic economic loss", that is, economic loss up to $50,000. In its place was mandated insurance coverage for the payment of first party benefits, to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle in this state. (Insurance Law §§ 671672673[1]).
Under the no-fault law, amounts recovered or recoverable on account of an injury arising out of a motor vehicle accident, under laws providing workers' compensation benefits or disability...
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