Chambers v. City of Ogdensburg

Appellate Division of the Supreme Court of New York

Chambers v. City of Ogdensburg

239 A.D.2d 850, 658 N.Y.S.2d 492, 1997 N.Y. App. Div. LEXIS 5555

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 22, 1997

StatusPublished

Cited by2 cases

This text of 239 A.D.2d 850 (Chambers v. City of Ogdensburg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chambers v. City of Ogdensburg, 239 A.D.2d 850, 658 N.Y.S.2d 492, 1997 N.Y. App. Div. LEXIS 5555 (N.Y. Ct. App. 1997).

Pincite

Opinion

Mikoll, J. P.

Appeal from an order of the Supreme Court (Demarest, J.), entered February 15, 1996 in St. Lawrence County, which held that the State Insurance Fund was not entitled to a full lien upon the proceeds received by plaintiffs in settlement of their third-party action.

The State Insurance Fund (hereinafter the Fund) paid Timothy J. Cooke, a 12-year-old paperboy who was injured when struck by a police car while delivering papers on his bike, $14,000 for permanent facial scars pursuant to Workers’ Compensation Law § 15 (3) (t) (1). The issue on this appeal is whether Supreme Court erred in holding, on authority of Dietrich v Kemper Ins. Co. (76 NY2d 248), that the Fund did not have a lien on the proceeds of the infant’s personal injury action recovery for the facial scars.

We initially reject plaintiffs’ contention that the Fund’s appeal is untimely. Plaintiffs failed to serve the Fund with a proper notice of entry of judgment. The Fund’s time to appeal was thus not limited and is timely (see, Blank v Schafrann, 206 AD2d 771, 773).

Given the similarity of facts between the Dietrick case (supra) and the instant case, it is submitted that Supreme Court was correct in denying the lien on the infant’s third-party settlement. The money awarded for no-fault insurance benefits was [851]*851intended to compensate the infant for basic economic loss and, thus, was compensation in lieu of first-party benefits and unreachable by a Workers’ Compensation Law lien (see, Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 19). Basic economic loss consists of, inter alia, all necessary medical expenses and loss of earnings from work (Insurance Law § 5102 [b]). Facial disfigurement implicates a person’s earning ability.

As an alternative argument the Fund urges that it should, at the very least, be given a lien against the third-party benefits in the amount of $12,000 which exceeds the statutory no-fault cap of $1,000 per month for lost wages

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Mikoll, J. P.

Appeal from an order of the Supreme Court (Demarest, J.), entered February 15, 1996 in St. Lawrence County, which held that the State Insurance Fund was not entitled to a full lien upon the proceeds received by plaintiffs in settlement of their third-party action.

The State Insurance Fund (hereinafter the Fund) paid Timothy J. Cooke, a 12-year-old paperboy who was injured when struck by a police car while delivering papers on his bike, $14,000 for permanent facial scars pursuant to Workers’ Compensation Law § 15 (3) (t) (1). The issue on this appeal is whether Supreme Court erred in holding, on authority of Dietrich v Kemper Ins. Co. (76 NY2d 248), that the Fund did not have a lien on the proceeds of the infant’s personal injury action recovery for the facial scars.

We initially reject plaintiffs’ contention that the Fund’s appeal is untimely. Plaintiffs failed to serve the Fund with a proper notice of entry of judgment. The Fund’s time to appeal was thus not limited and is timely (see, Blank v Schafrann, 206 AD2d 771, 773).

Given the similarity of facts between the Dietrick case (supra) and the instant case, it is submitted that Supreme Court was correct in denying the lien on the infant’s third-party settlement. The money awarded for no-fault insurance benefits was [851]*851intended to compensate the infant for basic economic loss and, thus, was compensation in lieu of first-party benefits and unreachable by a Workers’ Compensation Law lien (see, Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 19). Basic economic loss consists of, inter alia, all necessary medical expenses and loss of earnings from work (Insurance Law § 5102 [b]). Facial disfigurement implicates a person’s earning ability.

As an alternative argument the Fund urges that it should, at the very least, be given a lien against the third-party benefits in the amount of $12,000 which exceeds the statutory no-fault cap of $1,000 per month for lost wages

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Bluebook (online)

239 A.D.2d 850, 658 N.Y.S.2d 492, 1997 N.Y. App. Div. LEXIS 5555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chambers-v-city-of-ogdensburg-nyappdiv-1997.

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