N.Y. WKC Law § 29 — New York Code / Act WKC / Article 2 / Section 29
Remedies of employees; subrogation
Status: in_force

§ 29. Remedies of employees; subrogation. 1. If an employee entitled\nto compensation under this chapter be injured or killed by the\nnegligence or wrong of another not in the same employ, such injured\nemployee, or in case of death, his dependents, need not elect whether to\ntake compensation and medical benefits under this chapter or to pursue\nhis remedy against such other but may take such compensation and medical\nbenefits and at any time either prior thereto or within six months after\nthe awarding of compensation or within nine months after the enactment\nof a law or laws creating, establishing or affording a new or additional\nremedy or remedies, pursue his remedy against such other subject to the\nprovisions of this chapter. If such injured employee, or in case of\ndeath, his dependents, take or intend to take compensation, and medical\nbenefits in the case of an employee, under this chapter and desire to\nbring action against such other, such action must be commenced not later\nthan six months after the awarding of compensation or not later than\nnine months after the enactment of such law or laws creating,\nestablishing or affording a new or additional remedy or remedies and in\nany event before the expiration of one year from the date such action\naccrues. In such case, the state insurance fund, if compensation be\npayable therefrom, and otherwise the person, association, corporation or\ninsurance carrier liable for the payment of such compensation, as the\ncase may be, shall have a lien on the proceeds of any recovery from such\nother, whether by judgment, settlement or otherwise, after the deduction\nof the reasonable and necessary expenditures, including attorney's fees,\nincurred in effecting such recovery, to the extent of the total amount\nof compensation awarded under or provided or estimated by this chapter\nfor such case and the expenses for medical treatment paid or to be paid\nby it and to such extent such recovery shall be deemed for the benefit\nof such fund, person, association, corporation or carrier. Should the\nemployee or his dependents secure a recovery from such other, whether by\njudgment, settlement or otherwise, such employee or dependents may apply\non notice to such lienor to the court in which the third party action\nwas instituted, or to a court of competent jurisdiction if no action was\ninstituted, for an order apportioning the reasonable and necessary\nexpenditures, including attorneys' fees, incurred in effecting such\nrecovery. Such expenditures shall be equitably apportioned by the court\nbetween the employee or his dependents and the lienor. Notice of the\ncommencement of such action shall be given within thirty days thereafter\nto the chairman, the employer and the insurance carrier upon a form\nprescribed by the chairman. Any of the foregoing providers of\ncompensation and/or medical benefits which has recovered a lien pursuant\nto the provisions hereof against the recovery of a person injured on or\nafter February first, nineteen hundred seventy-four and before July\nfirst, nineteen hundred seventy-eight, through the use or operation of a\nmotor vehicle in this state, shall notify such person by certified mail\nin a manner to be approved by the chairman and the superintendent of\nfinancial services of the responsibility of an "insurer" (as defined in\nsubsection (g) of section five thousand one hundred two of the insurance\nlaw), to reimburse such person under such circumstances to the extent\nthat the recovered lien represent first party benefits as defined in\narticle fifty-one of the insurance law.\n  1-a. Notwithstanding any other provision of this chapter, the state\ninsurance fund, if compensation and/or medical benefits be payable\ntherefrom, or otherwise the person, association, corporation, insurance\ncarrier or statutory fund liable for the payment of such compensation\nand/or medical benefits shall not have a lien on the proceeds of any\nrecovery received pursuant to subsection (a) of section five thousand\none hundred four of the insurance law, whether by judgment, settlement\nor otherwise for compensation and/or medical benefits paid which were in\nlieu of first party benefits which another insurer would have otherwise\nbeen obligated to pay under article fifty-one of the insurance law. The\nsole remedy of any of the foregoing providers to recover the payments\nspecified in the preceding sentence shall be pursuant to the settlement\nprocedures contained in section five thousand one hundred five of the\ninsurance law.\n  1-b. Notwithstanding any other provision of this chapter to the\ncontrary, the state insurance fund, if compensation and/or medical\nbenefits be payable therefrom, or otherwise the person, association,\ncorporation, insurance carrier or statutory fund liable for the payment\nof such compensation and/or medical benefits: (a) shall not have a lien\non the proceeds of any award from the September eleventh victim\ncompensation fund of two thousand one established pursuant to title IV\nof the federal air transportation safety and system stabilization act,\npublic law 107-42, as amended; and (b) shall not terminate or reduce\nsuch compensation and/or medical benefits based upon the submission of a\nclaim for an award from such federal fund, and/or the waiver or\ncompromise of any cause of action resulting from such submission.\n  2. If such injured employee, or in case of death, his dependents, has\ntaken compensation under this chapter but has failed to commence action\nagainst such other within the time limited therefor by subdivision one,\nsuch failure shall operate as an assignment of the cause of action\nagainst such other to the state for the benefit of the state insurance\nfund, if compensation be payable therefrom, and otherwise to the person,\nassociation, corporation, or insurance carrier liable for the payment of\nsuch compensation. Except as hereinafter provided, the failure of the\ninjured employee or his dependents to commence an action pursuant to the\nprovisions of subdivision one of this section, shall not operate as an\nassignment of the cause of action as provided herein, unless the\ninsurance carrier shall have notified the claimant in writing by\npersonal service or by certified or registered mail, return receipt\nrequested, at least thirty days prior to the expiration of the time\nlimited for the commencement of an action by subdivision one, that such\nfailure to commence such action shall operate as an assignment of\nwhatever cause of action may exist to such insurance carrier. If the\ninsurance carrier shall fail to give such notice, the time limited for\nthe commencement of an action by subdivision one shall be extended until\nthirty days after the insurance carrier shall have notified the claimant\nin writing that failure to commence an action within thirty days after\nthe mailing of such notice shall operate as an assignment of the cause\nof action to such carrier, and in the event the claimant fails to\ncommence such action within thirty days after the mailing of such\nnotice, such failure shall operate as an assignment of such cause of\naction to such carrier. If such fund, person, association, corporation\nor carrier, as such an assignee, recover from such other, either by\njudgment, settlement or otherwise, a sum in excess of the total amount\nof compensation awarded to such injured employee or his dependents and\nthe expenses for medical treatment paid by it, together with the\nreasonable and necessary expenditures incurred in effecting such\nrecovery, it shall forthwith pay to such injured employee or his\ndependents, as the case may be, two-thirds of such excess, and to the\nextent of two-thirds of any such excess such recovery shall be deemed\nfor the benefit of such employee or his dependents. When the\ncompensation awarded requires periodical payments the number of which\ncannot be determined at the time of such award, the board shall, when\nthe injury or death was caused by the negligence or wrong of another not\nin the same employ, estimate the probable total amount thereof upon the\nbasis of the survivorship annuitants table of mortality, the remarriage\ntables of the Dutch Royal Insurance Institution and such facts as it may\ndeem pertinent, and such estimate shall be deemed the amount of the\ncompensation awarded in such case, for the purpose of computing the\namount of such excess recovery, subject to the modification thereof as\nhereinafter provided. If any of the foregoing providers, having paid\nbenefits under this chapter to an injured employee, who is also a\n"covered person" (as defined in subsection (j) of section five thousand\none hundred two of the insurance law), and who was injured in a motor\nvehicle accident in this state on and after February first, nineteen\nhundred seventy-four and before July first, nineteen hundred\nseventy-eight, maintains an action, as assignee, against such third\nparty, who is also a "covered person", and recovers, whether by\njudgment, settlement or otherwise, it shall advise the injured employee,\nby certified mail, in a manner to be approved by the chairman and the\nsuperintendent of financial services, of the responsibility of an\n"insurer" (as defined in subsection (g) of section five thousand one\nhundred two of the insurance law) to further compensate such injured\nemployee.\n  2-a. Notwithstanding any other provisions of this chapter, the failure\nof a "covered person" (as defined in subsection (j) of section five\nthousand one hundred two of the insurance law), who has taken\ncompensation and/or medical benefits under this chapter for injuries\narising out of the use or operation of a motor vehicle in this state, to\ncommence an action against such other within the time limited therefor\nby subdivision one of this section shall not operate as an assignment of\nthe cause of action to the provider thereof for their recovery when such\nbenefits were paid in lieu of first party benefits which another insurer\nwould have otherwise been obligated to pay under article fifty-one of\nthe insurance law, unless such other is not a "covered person". The sole\nremedy of any of the foregoing providers to recover the payments\nspecified in the preceding sentence when the other party is a "covered\nperson" shall be pursuant to the settlement procedures contained in\nsection five thousand one hundred five of the insurance law.\n  3. In the event of a modification of an award increasing the\ncompensation previously awarded or in the event that the total amount of\nperiodical payments made pursuant to an award under which the number of\nsuch payments could not be determined at the time of the award, shall\nexceed the total thereof as estimated by the board, the principal of any\nof such excess recovery theretofore paid to such injured employee or his\ndependents shall be credited against such increase or such excess. In\nthe event of a modification of an award ending or diminishing the\ncompensation previously awarded or in the event that the total amount of\nperiodical payments made pursuant to an award under which the number of\nsuch payments could not be determined at the time of the award, shall be\nless than the total thereof as estimated by the board, such fund,\nperson, association, corporation or carrier shall forthwith pay to such\ninjured employee or his dependents, as the case may be, any additional\namount of such excess recovery to which such injured employee or his\ndependents may be entitled by reason of such modification or such\ndeficiency, determined as hereinbefore provided.\n  4. If such injured employee, or in case of death, his dependents,\nproceed against such other, the state insurance fund, person,\nassociation, corporation, or insurance carrier, as the case may be,\nshall contribute only the deficiency, if any, between the amount of the\nrecovery against such other person actually collected, and the\ncompensation provided or estimated by this chapter for such case.\n  5. In case of the payment of an award to the commissioner of taxation\nand finance in accordance with subdivisions eight and nine of section\nfifteen and in accordance with section twenty-five-a such payment shall\noperate to give to the employer or insurance carrier liable for the\naward a cause of action for the amount of such payment together with the\nreasonable funeral expenses and the expense of medical treatment which\nshall be in addition to any cause of action by the legal representatives\nof the deceased. Such a cause of action assigned to the state may be\nprosecuted or compromised in the name of the state insurance fund by the\ncommissioners of the state insurance fund. A compromise of any such\ncause of action by the employee or his dependents at an amount less than\nthe compensation provided for by this chapter shall be made only with\nthe written approval of the commissioners of the state insurance fund or\nsuch officer thereof designated by them, if the deficiency of\ncompensation would be payable from the state insurance fund, and\notherwise with the written approval of the person, association,\ncorporation, or insurance carrier liable to pay the same. However,\nwritten approval of the commissioners of the state insurance fund or\nsuch officer thereof designated by them or written approval of the\nperson, association, corporation, or the insurance carrier need not be\nobtained if the employee or his dependents obtain a compromise order\nfrom a justice of the court in which the third-party action was pending.\nThe papers upon an application to compromise and settle such a claim\nshall consist of the petition, the affidavit of the attorney, and the\naffidavit of one or more physicians.\n  The petition shall contain the following:\n  a. The name and residence of the petitioner if the employee, or\npetitioner's relationship to the deceased;\n  b. The date of accident and a general description thereof;\n  c. The nature and extent of the damages sustained, including the name\nof the physician or physicians attending or consulting in the treatment\nand the medical expenses incurred, the period of disability resulting\nfrom the accident, the total amount of wages lost thereby, and the\npresent physical condition;\n  d. The terms of the attorney's retainer and of the proposed settlement\nand petitioner's approval thereof; and\n  e. Whether any previous application for the settlement of the claim\nhas been made, and if so, the time and the court or justice thereof and\nthe disposition made of same.\n  The affidavit of the attorney shall set forth by whom, on what date\nand under what terms he was retained, the services rendered by him, his\nfee if the settlement is approved, the acts complained of, the terms of\nthe proposed settlement with a statement of his reasons for recommending\nthe same, and shall state that he has not become concerned in the\napplication or its subject matter at the instance of such defendant\ndirectly or indirectly and that he has not received and is not to\nreceive any compensation from such defendant directly or indirectly.\n  The affidavit of the physician in a claim arising from personal injury\nto the employee, shall set forth his connection with the case; the\nperiod covered by the treatment and the nature, duration and extent of\nthe injuries; the date of his last examination and the condition of the\nemployee at that time; whether or not the employee is still suffering\nany disability or inconvenience as the result of the injury, giving the\ndetails thereof; whether or not the accident has left the employee with\nany permanent disability, defect, scar or impairment; the cost of the\ntreatment and whether or not he expects to be paid or has been paid by\nthe defendant or by anyone acting on the defendant's behalf. Where the\naffidavit as to the present condition is not made by the attending\nphysician, the latter's affidavit setting forth the character of the\ninjuries and treatment should also be attached, or the failure to obtain\nit explained. Where the employee was confined to a hospital, the court\nmay require the production of hospital records.\n  A copy of the papers to be used on the application to compromise and\nsettle the claim must be served as directed by the court or in the same\nmanner as provided in the civil practice law and rules for a notice of\nmotion upon the commissioners of the state insurance fund or such\nofficer thereof designated by them or upon the person, association,\ncorporation, or insurance carrier, whose written approval would have\nbeen required to compromise such cause of action by the employee or his\ndependents. This notice shall afford them the opportunity to submit\naffidavits and to be heard by the court on the application.\n  If the third-party action is on trial at the time the offer of\nsettlement which is acceptable to the plaintiff, is made and either such\nwritten approval or order as provided in this subdivision is required,\nthe action may be marked settled subject to the securing of such written\napproval or such order. If such written approval or such order is not\nsubsequently secured within three months the action shall be restored to\nthe head of the trial day calendar.\n  6. The right to compensation or benefits under this chapter, shall be\nthe exclusive remedy to an employee, or in case of death his or her\ndependents, when such employee is injured or killed by the negligence or\nwrong of another in the same employ, the employer's insurer or any\ncollective bargaining agent of the employer's employees or any employee,\nof such insurer or such collective bargaining agent (while acting within\nthe scope of his or her employment). The limitation of liability of an\nemployer set forth in section eleven of this article for the injury or\ndeath of an employee shall be applicable to another in the same employ,\nthe employer's insurer, any collective bargaining agent of the\nemployer's employees or any employee of the employer's insurer or such\ncollective bargaining agent (while acting within the scope of his or her\nemployment). The option to maintain an action in the courts for damages\nbased on the employer's failure to secure compensation for injured\nemployees and their dependents as set forth in section eleven of this\narticle shall not be construed to include the right to maintain an\naction against another in the same employ, the employer's insurer, any\ncollective bargaining agent of the employer's employees or any employee\nof the employer's insurer or such collective bargaining agent (while\nacting within the scope of his or her employment).\n