Ætna Casualty & Surety Company, Plaintiff, v. National Grange Mutual Insurance Company, Defendant, 44 Misc. 2d 540

Harold Segal, J. On March 5, 1963, one Irwin S. Lawyer, employee of the Town of Middleburgh, was injured in a vehicular accident, during the course of employment. Plaintiff, the compensation carrier for the Town of Middle-burgh, paid medical and hospital bills to the claimant, Irwin S. Lawyer in the sum of $45, but paid no compensation for loss of earnings. Lawyer instituted a third-party action to recover for personal injuries and the defendant’s carrier settled claim for the sum of $400. The plaintiff instituted an action in this court claiming payments were made to the employee-claimant without discharging its lien by reason of

section 29 of the Workmen’s Compensation Law. The defendant in its answer entered a general denial and that at the time of date of payment by the defendant, no notice of lien had been filed and that no notice of a third-party suit had been given or filed. The plaintiff moved for

summary judgment and the defendant moved for a dismissal of the complaint.

Section 13 of the Workmen’s Compensation Law grants to an employer a cause of action against the third party to recover for medical treatments when an employee is injured through the negligence of the third party. The court finds that a cause of action exists in favor of the plaintiff against the third-party defendant pursuant to

section 13 of the Workmen’s Compensation Law. In effect, the plaintiff is subrogated to the rights of its assured employee for any medical expenses paid. No notice of lien was filed and no notice of intention to sue a third party was filed. The employee was not interpleaded. The defendant carrier in good faith settled the claim of the injured employee without notice of any pending lien. If the defendant carrier had prior notice, a lien would have attached.

Section 29 of the Workmen’s Compensation Law contains no provision as to actual notice, but the court finds that sections 13 and 29 must be read together and that notice of lien by the third party is a prerequisite to recovery. Motion denied. Complaint dismissed.