NY Work Comp L § 227 (2021)
2021 New York Laws WKC - Workers' Compensation Article 9 - Disability Benefits 227 - Actionable Injuries in Claims for Disability Benefits; Subrogation.

§   227.  Actionable  injuries  in  claims  for  disability  benefits;   subrogation. 1. If an employee entitled  to  disability  benefits  under   this  article be disabled by injury caused by the negligence or wrong of   a third party, such  employee  need  not  elect  whether  to  take  such   disability  benefits  or  to pursue his remedy against such third party,   but may take his benefits under this article.  The  carrier  liable  for   payment  of  disability  benefits  under this article or the chairman in   case of benefits paid under section two hundred  seven  or  two  hundred   thirteen  shall  have  a  lien on the proceeds of any recovery from such   third party, whether by judgment, settlement  or  otherwise,  after  the   deduction of reasonable and necessary expenditures, including attorneys'   fees,  incurred  in  effecting such recovery, to the extent of the total   amount of disability benefits provided by this article and paid, and  to   such  extent  such  recovery  shall  be  deemed  for the benefit of such   carrier or the chairman. Should the employee secure a recovery from such   third party, whether by judgment, settlement or otherwise, such employee   may apply on notice to such lienor to the court in which the third party   action was instituted, or to a court of  competent  jurisdiction  if  no   action  was  instituted,  for  an  order apportioning the reasonable and   necessary expenditures, including attorneys' fees, incurred in effecting   such recovery. Such expenditures shall be equitably apportioned  by  the   court between the employee and the lienor. Notice of the commencement of   such action shall be given within ninety days thereafter to the employer   or carrier or to the chairman, as the case may be. The foregoing rights,   limitations,  and  procedures shall also apply to actions and recoveries   under  the  employers'  liability   act,   and   section   six   hundred   eighty-eight,  title  forty-six,  United  States  code,  and  under  the   maritime doctrine of wages, maintenance and cure. Any of  the  foregoing   providers  of disability benefits which has recovered a lien pursuant to   the provisions hereof against the recovery of a  person  injured  on  or   after  December  first,  nineteen  hundred seventy-seven and before July   first, nineteen hundred seventy-eight, through the use or operation of a   motor vehicle in this state, shall notify such person by certified mail,   in a manner to be approved by the chairman  and  the  superintendent  of   financial  services, of the responsibilities of an "insurer" (as defined   in subsection (g) of section  five  thousand  one  hundred  two  of  the   insurance law), to reimburse such person under such circumstances to the   extent  that  the  recovered  lien  represents  first  party benefits as   defined in article fifty-one of the insurance law.1-a. Notwithstanding any other provisions of this article the  carrier   liable  for  payment  of  disability benefits under this article, or the   chairman in case benefits are paid under section two  hundred  seven  or   section  two  hundred  thirteen of this chapter shall not have a lien on   the proceeds of any recovery received  pursuant  to  subsection  (a)  of   section  five thousand one hundred four of the insurance law, whether by   judgment, settlement or otherwise for disability  benefits  paid,  which   were  in  lieu  of first party benefits which another insurer would have   otherwise been obligated to pay under article fifty-one of the insurance   law. The sole remedy of any of the foregoing providers  to  recover  the   payments  in  the situation specified in the preceding sentence shall be   pursuant to the settlement procedures contained in section five thousand   one hundred five of the insurance law.2. If such disabled employee has been paid disability  benefits  under   this article but has failed to commence action against such other within   six  months  prior  to the expiration of the statute of limitations, the   carrier or the chairman, as the case may  be,  may  maintain  an  action   against  such  third  party. If the carrier or the chairman, as the case   may be, having paid disability benefits to a disabled employee,  who  is    also  a  "covered  person" (as defined in subsection (j) of section five   thousand one hundred two of the insurance law), and who was injured in a   motor vehicle accident in  this  state  on  and  after  December  first,   nineteen  hundred  seventy-seven and before July first, nineteen hundred   seventy-eight, maintains an action against such third party, who is also   a "covered person", and recovers, whether  by  judgment,  settlement  or   otherwise,  it shall advise the disabled employee, by certified mail, in   a manner to be approved  by  the  chairman  and  the  superintendent  of   financial services, of the responsibility of an "insurer" (as defined in   subsection (g) of section five thousand one hundred two of the insurance   law) to further compensate such disabled employee.2-a. Notwithstanding any other provisions of this article, the failure   of  a  "covered  person"  (as  defined in subsection (j) of section five   thousand one hundred two of  the  insurance  law),  who  has  been  paid   disability  benefits  under this article for injuries arising out of the   use or operation of a motor vehicle in this state, to commence an action   against such other within six months prior  to  the  expiration  of  the   statute  of  limitations, shall not operate to permit the carrier or the   chairman to institute an action  against  such  other  third  party  for   recovery  of  disability benefits paid which were in lieu of first party   benefits which an insurer would have otherwise  been  obligated  to  pay   under  article fifty-one of the insurance law unless such third party is   not a "covered  person".  The  sole  remedy  of  any  of  the  foregoing   providers  to  recover  the  payments  in the situation specified in the   preceding sentence when the other party is a "covered person"  shall  be   pursuant to the settlement procedures contained in section five thousand   one hundred five of the insurance law.3.  A  compromise  of  any  such cause of action by the employee in an   amount less than the benefits provided by this  article  shall  be  made   only  with  the  written  consent of the carrier or the chairman, as the   case may be.