Opinion
November 28, 1967
Appeal by defendants and third-party plaintiffs from an order denying their motion for partial summary judgment. The motion for summary judgment was based on the contention that as a matter of law the cause of action for injuries and wrongful death to Vincent D'Amico had not been assigned to plaintiff pursuant to section 29 Work. Comp. of the Workmen's Compensation Law. On August 30, 1960 Vincent D'Amico was accidentally killed while allegedly in the employ of Torrington Construction Company, Inc. The decedent's mother filed a claim for benefits as a dependent with the Workmen's Compensation Board. In March of 1962 the plaintiff, as the compensation insurance carrier for the decedent's alleged employer, gave notice to the mother that if she did not commence an action against the defendants herein, all causes of action would be assigned to it pursuant to section 29 Work. Comp. of the Workmen's Compensation Law. Thereafter, the plaintiff commenced the within action. The sole issue is whether or not there has been an assignment under section 29 Work. Comp. of the Workmen's Compensation Law, the applicable parts of which are as follows: "1. If an employee entitled to compensation under this chapter be * * * killed by the negligence or wrong of another not in the same employ * * * his dependents, need not elect whether to take compensation * * * or to pursue his remedy against such other but may take such compensation * * * and at any time either prior thereto or within six months after the awarding of compensation * * * pursue his remedy against such other subject to the provisions of this chapter. If * * * his dependents, take or intend to take compensation * * * and desire to bring action against such other, such action must be commenced not later than six months after the awarding of compensation * * * and in any event before the expiration of one year from the date such action accrues. 2. If * * * his dependents, has taken compensation * * * but has failed to commence action against such other within the time limited therefor by subdivision one, such failure shall operate as an assignment of the cause of action against such other to the * * * insurance carrier liable for the payment of such compensation." (Emphasis supplied.) The claimant did not receive any payment of compensation until long after this action was commenced. In the case of Juba v. General Bldrs. Supply Corp. ( 7 N.Y.2d 48, 53) the court stated: "[A] reasonable construction of section 29 forbids an automatic assignment where there has been no payment of compensation." The court did not have before it the provisions of the 1951 amendment to subdivision 2 of section 29 (Workmen's Compensation Law) and which as applicable to this case provides as follows: "Except as hereinafter provided, the failure of the * * * dependents to commence an action pursuant to the provisions of subdivision one of this section, shall not operate as an assignment of the cause of action as provided herein, unless the insurance carrier shall have notified the claimant in writing * * * at least thirty days prior to the expiration of the time limited * * * by subdivision one, that such failure to commence such action shall operate as an assignment of whatever cause of action may exist to the insurance carrier. If the insurance carrier shall fail to give such notice, the time limited for the commencement of an action by subdivision one shall be extended until thirty days after the insurance carrier shall have notified the claimant in writing that failure to commence an action within thirty days after the mailing of such notice shall operate as an assignment of the cause of action to such carrier, and in the event the claimant fails to commence such action within thirty days after the mailing of such notice, such failure shall operate as an assignment of such cause of action to such carrier." In the present case Special Term found that the notice required by the above quoted language was given by the plaintiff to the claimant in March of 1962 and the appellants do not dispute such finding. At the time of such notice no compensation had yet been paid to the claimant and in fact, the claim was being contested by the plaintiff. We perceive nothing in the language of the 1951 amendment as above set forth which would affect the requirement that compensation be paid before there is an automatic assignment. The language of the amendment purports to delay any automatic assignment until there has been notice to the claimant, but does not appear to in any way affect the mechanics of such assignment. In this record the equities appear to be with the plaintiff insurance carrier as did the equities with the claimant plaintiff in Juba [ supra], but there having been "no payment of compensation" we feel presently bound by that Court of Appeals' decision. Order reversed, on the law and the facts, and summary judgment against plaintiff American Mutual Liability Insurance Company dismissing the first cause of action in the complaint, and so much of the second cause of action as seeks recovery of the amount of the funeral bill, granted, with costs to appellant Niagara Mohawk Power Corporation. Herlihy, J.P., Aulisi and Gabrielli, JJ., concur in memorandum by Herlihy, J.P.; Reynolds, J., concurs in a separate memorandum, in which Staley, Jr., J., concurs.
We agree with the result only for the same reason given by the majority that we feel bound by Juba v. General Bldrs. Supply Corp. ( 7 N.Y.2d 48) but it is obvious that an injustice is being done here reading the statute as a whole and we do not think the Legislature ever intended such a construction of the statute which would allow a negligent third party to escape as under the present facts. But if the respondent is to have relief it must be in the Court of Appeals. [ 51 Misc.2d 940.]