Opinion
May 20, 1971
Present — Del Vecchio, J.P., Witmer, Gabrielli, Cardamone and Henry, JJ.
Controversy determined and judgment entered, without costs, declaring that plaintiff has a lien for $1,430 upon any recovery in defendant's third-party action for personal injuries. All concur. Memorandum: Pursuant to CPLR 3222, the parties have submitted this controversy upon an agreed statement of facts. Involved is the extent of plaintiff's lien on the proceeds of any recovery by defendant in his third-party action for personal injuries. Defendant, an employee of Symington Wayne Corporation (Symington), was injured in an accident which did not arise out of or in the course of his employment. At the time of the accident Symington had in effect a policy of insurance issued by plaintiff which covered defendant for nonoccupational injuries and provided for the payment of weekly benefits of $65. It is agreed that the weekly disability benefits payable under the Workmen's Compensation Law amounted to $55. Insofar as applicable, subdivision 1 of section 227 Work. Comp. of the Workmen's Compensation Law provides that a carrier liable for the payment of disability benefits is granted a statutory lien on the proceeds of any recovery from a third party "to the extent of the total amount of disability benefits provided by this article [art. 9] and paid, and to such extent such recovery shall be deemed for the benefit of such carrier". Plaintiff erroneously contends that it is entitled to a lien upon the proceeds of the recovery from the third party, for the full amount of the weekly indemnity paid under its policy of insurance. The statute (Workmen's Compensation Law, § 227, subd. 1), however, explicitly limits any such lien to "the total amount of disability benefits provided by this article". The contractual excess which defendant received was not intended to constitute disability benefits (cf. Smith v. Equitable Life Assur. Soc. of U.S., 19 A.D.2d 563, affd. 13 N.Y.2d 969) and the fact that Symington paid the full amount of the premium does not alter the result we reach. The excess received by defendant is nothing more than the fruit of a private agreement.