Kurtis v. Liberty Mutual Insurance

50 A.D.2d 599, 375 N.Y.S.2d 158, 1975 N.Y. App. Div. LEXIS 12376

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1975
• Status: Published

Opinion

— In an action predicated upon a failure to honor a lien, defendant Liberty Mutual Insurance Company appeals (by permission) from an order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated March 4, 1975, which modified a judgment of the County Court, Westchester County, entered January 28, 1974, by reducing the amount awarded to plaintiff upon the grant of its motion pursuant to CPLR 3213 to $2,444.76, plus interest. Order of the Appellate Term afiirmed, without costs. We agree with the parties that if plaintiff’s right to recover the additional moneys not specified in the notice of lien was predicated solely upon the provisions of section 104-b of the Social Services Law, a question of fact precluding summary judgment would exist: to wit, what portion of the additional moneys was furnished after the notice of lien was served and filed. However, this section is not the exclusive remedy afforded plaintiff. In the present case, the public assistance recipient executed a broad assignment of her rights against defendant’s insured to plaintiff. Defendant was well aware of the terms of the assignment but nevertheless chose to disregard it. Under the terms of the assignment plaintiff may recover all moneys expended after the date of the accident. As the parties appear to have acquiesced in the utilization of the provisions of CPLR 3213, we have not reviewed the propriety of such utilization. Hopkins, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.