| N.Y. App. Div. | May 3, 1954
On October 31, 1950, plaintiff sustained injuries in the course of his employment. On February 19, 1951, a compensation award was made to plaintiff. On May 9, 1951, the compensation carrier of plaintiff’s employer asserted its lien on the proceeds of any recovery in any action against a third party. On October 30, 1951, plaintiff commenced his third-party action. Appellants’ answer, served December 4, 1951, is a general denial. In June, 1952, appellants moved for leave to serve an amended answer to allege that plaintiff is not a proper party plaintiff because the action had been assigned to the compensation carrier under subdivision 2 of section 29 of the Workmen’s Compensation Law, as it existed before September 1, 1951, in view of the fact that the third-party action had not been, commenced within six months after the compensation award. This appeal is from the order denying that motion. Order reversed, with $10 costs and disbursements, and motion granted, without costs; the amended answer to be served within ten days from the entry of the order hereon. The assignment of the cause of action to the insurance carrier became absolute on August 19, 1951 (six months after the compensation award) on plaintiff’s failure to commence a third-party action on or before that date. The amendment (L. 1951, ch. 527) of subdivision 2 of section 29 of the Workmen’s Compensation Law, effective September 1, 1951, was not intended to divest the carrier of the ownership of that cause of action. Even if the amendment were a procedural statute, it could not “ reach backward, and nullify by relation the things already done” (Matter of Berhovitz v. Arbid é Houlberg, 230 H. Y. 261, 270), i.e., it could not reassign to plaintiff the cause of action which had already been assigned by operation of law to the insurance carrier on August 19, 1951. The statute, effective September 1, 1951, did not create a new or additional remedy. The remedy against the third party existed before the statute and continued thereafter. It was merely the ownership of the cause of action which was affected by the amendment. The assertion of the lien by the compensation carrier on May 9, 1951, was in no way inconsistent with its subsequent assertion of ownership of the cause of action based on the failure of plaintiff to commence the third-party action on or before August 19, 1951. Holán, P. J., Adel, Schmidt, Beldoek and Murphy, JJ., concur. [202 Misc. 1041" date_filed="1952-08-20" court="N.Y. Sup. Ct." case_name="Olker v. Salomone">202 Misc. 1041; see post, p. 1103.]