§ 29. Remedies of employees; subrogation. 1. If an employee entitled
to compensation under this chapter be injured or killed by the
negligence or wrong of another not in the same employ, such injured
employee, or in case of death, his dependents, need not elect whether to
take compensation and medical benefits under this chapter or to pursue
his remedy against such other but may take such compensation and medical
benefits and at any time either prior thereto or within six months after
the awarding of compensation or within nine months after the enactment
of a law or laws creating, establishing or affording a new or additional
remedy or remedies, pursue his remedy against such other subject to the
provisions of this chapter. If such injured employee, or in case of
death, his dependents, take or intend to take compensation, and medical
benefits in the case of an employee, under this chapter and desire to
bring action against such other, such action must be commenced not later
than six months after the awarding of compensation or not later than
nine months after the enactment of such law or laws creating,
establishing or affording a new or additional remedy or remedies and in
any event before the expiration of one year from the date such action
accrues. In such case, the state insurance fund, if compensation be
payable therefrom, and otherwise the person, association, corporation or
insurance carrier liable for the payment of such compensation, as the
case may be, shall have a lien on the proceeds of any recovery from such
other, whether by judgment, settlement or otherwise, after the deduction
of the reasonable and necessary expenditures, including attorney's fees,
incurred in effecting such recovery, to the extent of the total amount
of compensation awarded under or provided or estimated by this chapter
for such case and the expenses for medical treatment paid or to be paid
by it and to such extent such recovery shall be deemed for the benefit
of such fund, person, association, corporation or carrier. Should the
employee or his dependents secure a recovery from such other, whether by
judgment, settlement or otherwise, such employee or dependents 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 or his dependents and the lienor. Notice of the
commencement of such action shall be given within thirty days thereafter
to the chairman, the employer and the insurance carrier upon a form
prescribed by the chairman. Any of the foregoing providers of
compensation and/or medical benefits which has recovered a lien pursuant
to the provisions hereof against the recovery of a person injured on or
after February first, nineteen hundred seventy-four 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 responsibility 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 represent first party benefits as defined in
article fifty-one of the insurance law.

1-a. Notwithstanding any other provision of this chapter, the state
insurance fund, if compensation and/or medical benefits be payable
therefrom, or otherwise the person, association, corporation, insurance
carrier or statutory fund liable for the payment of such compensation
and/or medical benefits 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 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 article fifty-one of the insurance law. The
sole remedy of any of the foregoing providers to recover the payments
specified in the preceding sentence shall be pursuant to the settlement
procedures contained in section five thousand one hundred five of the
insurance law.

1-b. Notwithstanding any other provision of this chapter to the
contrary, the state insurance fund, if compensation and/or medical
benefits be payable therefrom, or otherwise the person, association,
corporation, insurance carrier or statutory fund liable for the payment
of such compensation and/or medical benefits: (a) shall not have a lien
on the proceeds of any award from the September eleventh victim
compensation fund of two thousand one established pursuant to title IV
of the federal air transportation safety and system stabilization act,
public law 107-42, as amended; and (b) shall not terminate or reduce
such compensation and/or medical benefits based upon the submission of a
claim for an award from such federal fund, and/or the waiver or
compromise of any cause of action resulting from such submission.

2. If such injured employee, or in case of death, his dependents, has
taken compensation under this chapter but has failed to commence action
against such other within the time limited therefor by subdivision one,
such failure shall operate as an assignment of the cause of action
against such other to the state for the benefit of the state insurance
fund, if compensation be payable therefrom, and otherwise to the person,
association, corporation, or insurance carrier liable for the payment of
such compensation. Except as hereinafter provided, the failure of the
injured employee or his dependents to commence an action pursuant to the
provisions of subdivision one of this section, shall not operate as an
assignment of the cause of action as provided herein, unless the
insurance carrier shall have notified the claimant in writing by
personal service or by certified or registered mail, return receipt
requested, at least thirty days prior to the expiration of the time
limited for the commencement of an action by subdivision one, that such
failure to commence such action shall operate as an assignment of
whatever cause of action may exist to such insurance carrier. If the
insurance carrier shall fail to give such notice, the time limited for
the commencement of an action by subdivision one shall be extended until
thirty days after the insurance carrier shall have notified the claimant
in writing that failure to commence an action within thirty days after
the mailing of such notice shall operate as an assignment of the cause
of action to such carrier, and in the event the claimant fails to
commence such action within thirty days after the mailing of such
notice, such failure shall operate as an assignment of such cause of
action to such carrier. If such fund, person, association, corporation
or carrier, as such an assignee, recover from such other, either by
judgment, settlement or otherwise, a sum in excess of the total amount
of compensation awarded to such injured employee or his dependents and
the expenses for medical treatment paid by it, together with the
reasonable and necessary expenditures incurred in effecting such
recovery, it shall forthwith pay to such injured employee or his
dependents, as the case may be, two-thirds of such excess, and to the
extent of two-thirds of any such excess such recovery shall be deemed
for the benefit of such employee or his dependents. When the
compensation awarded requires periodical payments the number of which
cannot be determined at the time of such award, the board shall, when
the injury or death was caused by the negligence or wrong of another not
in the same employ, estimate the probable total amount thereof upon the
basis of the survivorship annuitants table of mortality, the remarriage
tables of the Dutch Royal Insurance Institution and such facts as it may
deem pertinent, and such estimate shall be deemed the amount of the
compensation awarded in such case, for the purpose of computing the
amount of such excess recovery, subject to the modification thereof as
hereinafter provided. If any of the foregoing providers, having paid
benefits under this chapter to an injured 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 February first, nineteen
hundred seventy-four and before July first, nineteen hundred
seventy-eight, maintains an action, as assignee, against such third
party, who is also a "covered person", and recovers, whether by
judgment, settlement or otherwise, it shall advise the injured 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 injured
employee.

2-a. Notwithstanding any other provisions of this chapter, the failure
of a "covered person" (as defined in subsection (j) of section five
thousand one hundred two of the insurance law), who has taken
compensation and/or medical benefits under this chapter for injuries
arising out of the use or operation of a motor vehicle in this state, to
commence an action against such other within the time limited therefor
by subdivision one of this section shall not operate as an assignment of
the cause of action to the provider thereof for their recovery when such
benefits were paid in lieu of first party benefits which another insurer
would have otherwise been obligated to pay under article fifty-one of
the insurance law, unless such other is not a "covered person". The sole
remedy of any of the foregoing providers to recover the payments
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. In the event of a modification of an award increasing the
compensation previously awarded or in the event that the total amount of
periodical payments made pursuant to an award under which the number of
such payments could not be determined at the time of the award, shall
exceed the total thereof as estimated by the board, the principal of any
of such excess recovery theretofore paid to such injured employee or his
dependents shall be credited against such increase or such excess. In
the event of a modification of an award ending or diminishing the
compensation previously awarded or in the event that the total amount of
periodical payments made pursuant to an award under which the number of
such payments could not be determined at the time of the award, shall be
less than the total thereof as estimated by the board, such fund,
person, association, corporation or carrier shall forthwith pay to such
injured employee or his dependents, as the case may be, any additional
amount of such excess recovery to which such injured employee or his
dependents may be entitled by reason of such modification or such
deficiency, determined as hereinbefore provided.

4. If such injured employee, or in case of death, his dependents,
proceed against such other, the state insurance fund, person,
association, corporation, or insurance carrier, as the case may be,
shall contribute only the deficiency, if any, between the amount of the
recovery against such other person actually collected, and the
compensation provided or estimated by this chapter for such case.

5. In case of the payment of an award to the commissioner of taxation
and finance in accordance with subdivisions eight and nine of section
fifteen and in accordance with section twenty-five-a such payment shall
operate to give to the employer or insurance carrier liable for the
award a cause of action for the amount of such payment together with the
reasonable funeral expenses and the expense of medical treatment which
shall be in addition to any cause of action by the legal representatives
of the deceased. Such a cause of action assigned to the state may be
prosecuted or compromised in the name of the state insurance fund by the
commissioners of the state insurance fund. A compromise of any such
cause of action by the employee or his dependents at an amount less than
the compensation provided for by this chapter shall be made only with
the written approval of the commissioners of the state insurance fund or
such officer thereof designated by them, if the deficiency of
compensation would be payable from the state insurance fund, and
otherwise with the written approval of the person, association,
corporation, or insurance carrier liable to pay the same. However,
written approval of the commissioners of the state insurance fund or
such officer thereof designated by them or written approval of the
person, association, corporation, or the insurance carrier need not be
obtained if the employee or his dependents obtain a compromise order
from a justice of the court in which the third-party action was pending.
The papers upon an application to compromise and settle such a claim
shall consist of the petition, the affidavit of the attorney, and the
affidavit of one or more physicians.

The petition shall contain the following:

a. The name and residence of the petitioner if the employee, or
petitioner's relationship to the deceased;

b. The date of accident and a general description thereof;

c. The nature and extent of the damages sustained, including the name
of the physician or physicians attending or consulting in the treatment
and the medical expenses incurred, the period of disability resulting
from the accident, the total amount of wages lost thereby, and the
present physical condition;

d. The terms of the attorney's retainer and of the proposed settlement
and petitioner's approval thereof; and

e. Whether any previous application for the settlement of the claim
has been made, and if so, the time and the court or justice thereof and
the disposition made of same.

The affidavit of the attorney shall set forth by whom, on what date
and under what terms he was retained, the services rendered by him, his
fee if the settlement is approved, the acts complained of, the terms of
the proposed settlement with a statement of his reasons for recommending
the same, and shall state that he has not become concerned in the
application or its subject matter at the instance of such defendant
directly or indirectly and that he has not received and is not to
receive any compensation from such defendant directly or indirectly.

The affidavit of the physician in a claim arising from personal injury
to the employee, shall set forth his connection with the case; the
period covered by the treatment and the nature, duration and extent of
the injuries; the date of his last examination and the condition of the
employee at that time; whether or not the employee is still suffering
any disability or inconvenience as the result of the injury, giving the
details thereof; whether or not the accident has left the employee with
any permanent disability, defect, scar or impairment; the cost of the
treatment and whether or not he expects to be paid or has been paid by
the defendant or by anyone acting on the defendant's behalf. Where the
affidavit as to the present condition is not made by the attending
physician, the latter's affidavit setting forth the character of the
injuries and treatment should also be attached, or the failure to obtain
it explained. Where the employee was confined to a hospital, the court
may require the production of hospital records.

A copy of the papers to be used on the application to compromise and
settle the claim must be served as directed by the court or in the same
manner as provided in the civil practice law and rules for a notice of
motion upon the commissioners of the state insurance fund or such
officer thereof designated by them or upon the person, association,
corporation, or insurance carrier, whose written approval would have
been required to compromise such cause of action by the employee or his
dependents. This notice shall afford them the opportunity to submit
affidavits and to be heard by the court on the application.

If the third-party action is on trial at the time the offer of
settlement which is acceptable to the plaintiff, is made and either such
written approval or order as provided in this subdivision is required,
the action may be marked settled subject to the securing of such written
approval or such order. If such written approval or such order is not
subsequently secured within three months the action shall be restored to
the head of the trial day calendar.

6. The right to compensation or benefits under this chapter, shall be
the exclusive remedy to an employee, or in case of death his or her
dependents, when such employee is injured or killed by the negligence or
wrong of another in the same employ, the employer's insurer or any
collective bargaining agent of the employer's employees or any employee,
of such insurer or such collective bargaining agent (while acting within
the scope of his or her employment). The limitation of liability of an
employer set forth in section eleven of this article for the injury or
death of an employee shall be applicable to another in the same employ,
the employer's insurer, any collective bargaining agent of the
employer's employees or any employee of the employer's insurer or such
collective bargaining agent (while acting within the scope of his or her
employment). The option to maintain an action in the courts for damages
based on the employer's failure to secure compensation for injured
employees and their dependents as set forth in section eleven of this
article shall not be construed to include the right to maintain an
action against another in the same employ, the employer's insurer, any
collective bargaining agent of the employer's employees or any employee
of the employer's insurer or such collective bargaining agent (while
acting within the scope of his or her employment).