Martin v. Agway Petroleum Corp.

Callahan, J. P. (dissenting).

While I agree that Supreme Court erred in equitably reducing State Insurance Fund’s lien in its entirety, the courts are not limited to a strict mathematical reduction. In my view, some allocation should be made for an equitable apportionment. The determination of what constitutes equitable apportionment of costs has been left to the courts (Matter of Kelly v State Ins. Fund, 60 NY2d 131, 138). In amending Workers’ Compensation Law § 29 (1) to provide for allocation of litigation costs between the employee and the carrier, the Legislature purposely adopted the…