Claim of Noyes v. First National City Bank

Appellate Division of the Supreme Court of New York

Claim of Noyes v. First National City Bank

39 A.D.2d 183, 333 N.Y.S.2d 117, 1972 N.Y. App. Div. LEXIS 4282

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

DecidedJune 14, 1972

StatusPublished

Cited by1 cases

This text of 39 A.D.2d 183 (Claim of Noyes v. First National City Bank) 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

Claim of Noyes v. First National City Bank, 39 A.D.2d 183, 333 N.Y.S.2d 117, 1972 N.Y. App. Div. LEXIS 4282 (N.Y. Ct. App. 1972).

Pincite

Opinion

Kane, J.

This is an appeal by the employer and its insurance carrier from a decision of the Workmen’s Compensation Board, filed February 24, 1971.

Decedent was employed as a trust officer and died as a result of injuries sustained in an automobile accident while in the course of his employment. A third-party action commenced in Supreme Court was reached for trial during the pendency of the widow’s compensation claim. At a pretrial conference a settlement agreement was negotiated which, among other provisions for payment, included a reduction of the lien of the carrier. The amount so waived by the carrier was to be paid to the widow. A duly authorized representative of the carrier participated in settlement negotiations and entered into a stipulation on the record, and upon which a written order was entered, which provided for payments and then further provided that the compensation carrier “ does not consent to the settlement of the foregoing claim ’ ’ and that reduction of the amount of its lien “ shall not be construed as consent to the settlement of the third-party claim”. Thereafter the third-party action was settled. More than a year later, at a further compensation hearing, the Referee held that deficiency compensation should be awarded since ‘1 the third-party settlement was tantamount to one with consent of the workmen’s compensation carrier ”.

Appellants argue that subdivision 5 of section 29 of the Workmen’s Compensation Law spells out in detail the requirements for an order of compromise that continue a carrier’s liability upon settlement of a third-party action and, further, that under the facts presented in this case, there could be no estoppel against the carrier from the benefits of that section. The board has found otherwise and its determination must be sustained.

The precise and formal procedural requirements of the statute are waived when, as under the situation presented in this case, a duly authorized representative of the carrier actively participates in settlement negotiations in the third-party action and obtains a direct benefit for the carrier as a result of the compromise. (Matter of Timm v. Rogers Beauty Salon, 284 App. Div. 1.) To require a formal application at this juncture would merely add an unnecessary procedural step. It should be noted that the provisions of subdivision 5 of section 29 exist ‘ ‘ to pro[185]*185tect the insurer as to the amount of the deficiency; it has no other purpose ”. (Seventh Annual Report of N. Y. Judicial Conference, 1962, p. 16.)

The decision should be affirmed, with costs to the Workmen’s Compensation Board.

Herlihy, P. J., Greenblott, Simons and Reynolds, JJ., concur.

Decision affirmed, with costs to the Workmen’s Compensation Board.

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Kane, J.

This is an appeal by the employer and its insurance carrier from a decision of the Workmen’s Compensation Board, filed February 24, 1971.

Decedent was employed as a trust officer and died as a result of injuries sustained in an automobile accident while in the course of his employment. A third-party action commenced in Supreme Court was reached for trial during the pendency of the widow’s compensation claim. At a pretrial conference a settlement agreement was negotiated which, among other provisions for payment, included a reduction of the lien of the carrier. The amount so waived by the carrier was to be paid to the widow. A duly authorized representative of the carrier participated in settlement negotiations and entered into a stipulation on the record, and upon which a written order was entered, which provided for payments and then further provided that the compensation carrier “ does not consent to the settlement of the foregoing claim ’ ’ and that reduction of the amount of its lien “ shall not be construed as consent to the settlement of the third-party claim”. Thereafter the third-party action was settled. More than a year later, at a further compensation hearing, the Referee held that deficiency compensation should be awarded since ‘1 the third-party settlement was tantamount to one with consent of the workmen’s compensation carrier ”.

Appellants argue that subdivision 5 of section 29 of the Workmen’s Compensation Law spells out in detail the requirements for an order of compromise that continue a carrier’s liability upon settlement of a third-party action and, further, that under the facts presented in this case, there could be no estoppel against the carrier from the benefits of that section. The board has found otherwise and its determination must be sustained.

The precise and formal procedural requirements of the statute are waived when, as under the situation presented in this case, a duly authorized representative of the carrier actively participates in settlement negotiations in the third-party action and obtains a direct benefit for the carrier as a result of the compromise. (Matter of Timm v. Rogers Beauty Salon, 284 App. Div. 1.) To require a formal application at this juncture would merely add an unnecessary procedural step. It should be noted that the provisions of subdivision 5 of section 29 exist ‘ ‘ to pro[185]*185tect the insurer as to the amount of the deficiency; it has no other purpose ”. (Seventh Annual Report of N. Y. Judicial Conference, 1962, p. 16.)

The decision should be affirmed, with costs to the Workmen’s Compensation Board.

Herlihy, P. J., Greenblott, Simons and Reynolds, JJ., concur.

Decision affirmed, with costs to the Workmen’s Compensation Board.

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39 A.D.2d 183, 333 N.Y.S.2d 117, 1972 N.Y. App. Div. LEXIS 4282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-noyes-v-first-national-city-bank-nyappdiv-1972.

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