Matter of Rodriguez v New York City Tr. Auth.
Annotate this CaseDecided on November 6, 2008
Supreme Court, Kings County
In the Matter of the Application of Luis Rodriguez, Petitioner,
against
New York City Transit Authority, Respondent.
12084/08
The petitioner is represented by the law office of Kenneth M. Mollins, P.C. by Peter Citrin, Esq., of counsel, the respondent the New York City Transit Authority is represented by the law offices of Jones, Jones, Larkin & O'Connell, LLP., by Eric W. Ostrager, Esq., of counsel.
Robert J. Miller, J.
Petitioner's application seeking approval of the settlement made with Lincoln General
Insurance in the amount of $25,000.00 is granted. Petitioner's cross motion seeking an order to enforce
a lien in the amount of $ 10,646.38 representing reimbursement of differential pay benefits is denied.
At oral argument , the parties agreed on the record that the sole issue for the Court to consider
was the enforceability of the lien asserted by the New York City Transit Authority (NYCTA).
Any failure by petitioner to comply with the requirements of Worker's Compensation Law
§ 29 (5) has been waived.
Petitioner Luis Rodriguez (Rodriguez) was involved in a motor vehicle accident during the course of his employment with the NYCTA on October 7, 2006. Petitioner was injured during the accident and received Worker's Compensation benefits at the rate of $400.00 per week for the period of October 8, 2006 through January 25, 2007. Rodriguez also sought to recover damages from the driver of the other vehicle involved in the accident who was insured by Lincoln General Insurance. Unfortunately for Rodriguez, the policy limit was $25,000.00 with no excess coverage. The carrier offered the policy limit and the offer was accepted by Rodriguez.
In its cross-motion, the NYCTA seeks to enforce a lien against the settlement proceeds to recover money paid by the NYCTA for differential pay. The Collective Bargaining Agreement (CBA) between the NYCTA and the Transport Workers Union (TWU) dated December 16, 2002 provides at section 2.7 that when an NYCTA employee is injured while on the job and is certified to receive Worker's Compensation benefits that the employee is eligible to receive "a differential payment which shall be sufficient to comprise, together with any Worker's Compensation payable to him/her under the provisions of the Workers' Compensation Law an [*2]amount after taxes equal to his/her tax after wages for a forty (40) hour work week."
Pursuant to Section 2.7, the NYCTA paid Rodriguez $10,646.38. They now seek to recover this
sum from the $25,000.00 settlement by asserting a lien against this recovery. The first basis
of the lien asserted by the NYCTA is the Worker's Compensation Law. However, the NYCTA has no
Workers Compensation lien as it may not assert a lien against compensation received in lieu of first
party benefits.
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This principal was enunciated by the Court in Matter of Buck v Graphics Arts Mut. Ins. Co., 19 AD3d 966 [3d Dept 2005] as follows.:
However, the carrier may not assert a lien against
proceeds received pursuant to Insurance Law § 5104
(a) "for compensation and/or medical benefits paid
which were in lieu of first party benefits which another
insurer would have otherwise been obligated to pay
under [the No-Fault Automobile Insurance Law]"
(citations omitted) First party benefits are payments of
up to $50,000 intended to reimburse the injured person
for his or her "basic economic loss," including lost wages
and medical expenses....
The NYCTA next argues that the differential payments are fully lienable because Rodriguez executed a "On the Job Injury Form". The NYCTA asserts as follows:
With regard to differential payments made to the petitioner,
these are fully lienable by the New York City Transit Authority .
On October 7, 2006, Mr. Rodriguez executed an "On the Job
Injury Form" (annex here to as Exhibit "A"). As part of the form,
the petitioner executed a "Differential Application". Contained
within the application, is an agreement by Mr. Rodriguez that the
Transit Authority "may seek to recoup the value of Differential
Benefits paid from any judgment or settlement of an action against
third parties" he may institute as a result of the injury.
It is clear that the "On the Job Injury Form" does not create a security interest pursuant to § 1-201 (37) of the NYUCC. There is nothing in the document which demonstrates an intent to grant a security interest by Rodriguez to the NYCTA. (King v Tuxedo Enterprises, Inc., 975 F. Supp. 448 [E.D.NY 1997], Talco Contractors, Inc. v New York State Tax Com'n, 140 AD2d 834 [3d Dept 1988]).
The Court now looks to the CBA between the NYCTA and the TWU to determine if any [*3]
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provision of the CBA permits the NYCTA to obtain reimbursement of monies paid in
differential pay. The CBA is silent on this question.
The CBA adopts the "Integrated Agreement" dated December 15, 2002 between the NYCTA and the TWU. The Integrated Agreement makes clear that the TWU is the " exclusive bargaining representative and the exclusive representative" of the workers including Rodriguez. The parties further acknowledge that the Integrated Agreement which is part of the CBA "constitutes the sole and existing agreement between the parties".
Since the NYCTA can point to no provision of the CBA which gives them authority to assert a lien with respect to the payment of differential pay, the Court holds that this issue is not for the Court to resolve but is a question for collective bargaining between the TWU and the NYCTA. Until the NYCTA negotiates for the right to reimbursement of monies paid in differential payments, the Court will not grant the NYCTA rights that it has not bargained for.
Accordingly, the petition seeking approval of the settlement is granted and the cross-motion of the NYCTA to assert a lien against the settlement proceeds is denied.
The foregoing constitutes the decision, order and judgment of the Court.
_______________________
Robert J. Miller
J.S.C.
November 6, 2008
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