The opinion of the court was delivered by: BYERS
Motion for summary judgment by defendant which is supported by the third party defendant, in an action under the Federal Tort Claims Act (now 28 U.S.C.A. §§ 1346, 2671 et seq.), in which recovery is sought for personal injuries sustained by plaintiff.
The important chronology is:
January 11, 1945- plaintiff injured while in employ of John T. Clark & Son, as longshoreman on Pier 2, Brooklyn.
January 11, 1946- One Year elapses. Section 29, New York Workmen's Compensation Law, McK. Consol. Laws, 67.
January 25, 1946- Decision awarding compensation to plaintiff, payable by his employer, and insurance carrier, by Workmen's Compensation Board (N.Y.).
July 26, 1946- 6-months' time elapses from said award. Section 29, New York Workmen's Compensation law.
March 13, 1947- Amendment to Section 29, New York Workmen's Compensation Law, extending period within which to institute a third party action to nine months after passage of a law creating new or additional remedies, namely, the Federal Tort Claims Act, 28 U.S.C.A. § 931 (now Secs. 1346, 2671 et seq.) which was effective August 2, 1946. Hence 9 months later or May 2, 1947, became the last date on which plaintiff could have brought suit under that Act (Commissioners of State Ins. Fund v. United States, D.C., 72 F.Supp. 549).
July 17, 1947- This complaint was filed.
The affidavit in opposition to the motion concedes that the plaintiff's cause would be barred by the lapse of time, but for a document first referred to on the argument, and attached to said affidavit, which was executed March 7, 1950.
Plaintiff asserts that it is a 'waiver of subrogation' by the insurance carrier for plaintiff's employer Clark, and an 'authorization' which should be construed as an assignment of its cause based upon the carrier's being subrogated to the rights of the injured man as against the United States as lessee of Pier 2 when the accident happened.
The plaintiff's cause is that a falling door on the Pier released a pulling rope which raised him some feet from the level of the Pier, and that he then fell and sustained injuries. He was, as stated, an employee of Clark, a stevedore, and Pier 2 was being operated by the United States which was in control under a lease. The Pier was owned by Bush Terminal Company, the third party defendant.
The plaintiff obtained an award by the New York State Workmen's Compensation Board against Cleark, his employer, of $ 225,00 for eleven weeks' disability. The complaint demands damages in the sum of $ 25,000.00.
The said document has been examined in light of the plaintiff's assertions concerning its legal efficacy and character, but to no avail favorable to plaintiff:
It does not in terms purport to assign its cause of action. It merely authorizes and empowers plaintiff to sue any person, etc., or sovereignty who or which may be liable, in his own name, for said personal injuries, reserving the right to claim and receive from the proceeds, if any, its own prior payments to or for the plaintiff. The recited purpose is to waive the right of subrogation 'specified in Section 29 of the Workmen's Compensation Law of the State of New York'. It has not been explained how the right could be simultaneously waived and assigned. The mere waiver passed nothing to the plaintiff. If an assignment had been ...