Friello v. Black & Decker Manufacturing Co. , 28 Misc. 2d 658 ( 1961 )

Walter B. Hart, J.

Motion by defendant, the Carborundum Company, for summary judgment upon the ground that the action is barred by section 29 of the Workmen’s Compensation Law. There are triable issues as to whether the notices given by the compensation carrier comply with the requirements of subdivision 2 of section 29, both with regard to their content and the manner in which they were served (Gorman v. Transocean Air Lines, 158 F. Supp. 339 ; cf. Teresta v. City of New York, 277 App. Div. 787, revd. on other grounds 304 N. Y. 440).

Another circumstance here present would seem to render summary judgment inappropriate. Thus, the compensation carrier is also the insurance carrier for the third-party movant. The possible conflict of interest inherent in this situation should be explored more fully at a trial. (See McCue v. Shea Co., 175 Misc. 557, per Froessel, J., affd. 260 App. Div. 946, overruled on other grounds in Christison v. Wallace, 265 App. Div. 937.) Although the statutory assignment under section 29 confers unlimited rights upon the assignee in respect to the disposition of the third-party claim, this is so only li in the absence of fraud” (Skakandy v. State of New York, 274 App. Div. 153, 156, affd. 298 N. Y. 886). Motion denied.