General Accident Insurance v. Yaglowski

Order unanimously reversed on the law without costs, motion granted, cross motion denied and complaint reinstated. Memorandum: Supreme Court erred in denying plaintiff’s motion for summary judgment and in dismissing this action for want of subject 1033 matter jurisdiction. It is uncontroverted that plaintiffs payment to defendant of an amount in excess of the award made by the Workers’ Compensation Board (the Board) for his work related injury was the result of inadvertence or mistake. Because defendant is not receiving payment of continuous benefits, Workers’ Compensation Law §22, which vests the Board with the discretion to determine the manner and method to rectify overpayment, is not applicable (see, Matter of Dovi v Grand Union Co., 64 AD2d 343, 344; see also, Matter of Collier v Simmonds Precision, 122 AD2d 399, 400). Under those circumstances, Supreme Court has subject matter jurisdiction over an action in equity brought by the insurer to recover any excess monies mistakenly paid (see, Matter of Liberty Mut. Ins. Co. v Newman, 92 AD2d 613). Inasmuch as there is no showing that defendant will suffer a detrimental, material and irrevocable change of position if restitution is ordered, plaintiffs motion for summary judgment for the amount sought in its complaint is granted without costs or interest (Matter of Liberty Mut. Ins. Co. v Newman, supra, at 614-615). (Appeal from Order of Supreme Court, Onondaga County, Reagan, J. — Dismiss Complaint.) Present — Denman, P. J., Green, Lawton, Fallon and Doerr, JJ.