Commissioners of the State Insurance Fund v. Allstate Insurance

41 Misc. 2d 189, 245 N.Y.S.2d 575, 1963 N.Y. Misc. LEXIS 2131

Opinion

Sidney Gold, J.

Plaintiffs move for summary judgment in an action to recover on a lien created by subdivision 1 of section 29 of the Workmen’s Compensation Law.

Plaintiffs were the compensation carrier of Aberdeen Co., whose employee Charles McLemoure, the third-party defendant, was injured while driving its truck on May 7, 1960, when it was struck by a vehicle owned and operated by one Daniels, who was insured by the defendant.

After the accident, McLemoure made a claim against Daniels for personal injuries as a result of the alleged negligence of the latter, and on June 2, 1960, defendant, as Daniels’ insurer, consummated a settlement of that claim with McLemoure for the sum of $275.

Plaintiffs thereafter paid compensation and hospital and medical benefits to McLemoure totalling $244.25 for a period prior to June 2, 1960.

Defendant contends that it settled with McLemoure in good faith without notice from him that he was entitled to compensation benefits and that it did not receive notice of a claim or of a lien from the plaintiffs prior to June 2, 1960.

It requests summary judgment against plaintiffs and against McLemoure, against whom it has requested judgment over, although the latter is not before the court on this motion.

Section 29 of the Workmen’s Compensation Law contains no provision that makes mandatory the service of notice of lien, which lien exists by virtue of the statute and not by reason of a notice given pursuant to the statute. No issue of fact has been created by defendant and the plaintiffs have clearly shown that there is no defense to the action and that they are entitled to judgment.

Accordingly, judgment is directed in favor of plaintiffs against defendant in the sum of $244.25.