McKee v. Sithe Independence Power Partners

—Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in extinguishing the lien of Liberty Mutual Insurance Company (Liberty Mutual), the workers’ compensation carrier, on the damages awarded to petitioners in their underlying third-party action (see, Workers’ Compensation Law § 29 [1]). Petitioners alleged that Liberty Mutual’s share of the litigation expenses and the future benefits extinguished by the judgment in the underlying action (see, Matter of Kelly v State Ins. Fund, 60 NY2d 131) exceeded the amount of the lien, and thus the lien should be extinguished. We disagree. Petitioner Thomas McKee was not receiving ongoing compensation for a total disability or scheduled loss of use. Liberty Mutual’s obligation to pay future benefits therefore cannot be quantified “by actuarial or other reliable means” (Matter of Briggs v Kansas City Fire & Mar. Ins. Co., 121 AD2d 810, 812; cf., Matter of Kelly v State Ins. Fund, supra), and the present value of the estimated future compensation payments that Liberty Mutual would have become obligated to make cannot be ascertained (see, Matter of Briggs v Kansas City Fire & Mar. Ins. Co., supra, at 811-812). We therefore reverse the order and remit the matter to Supreme Court to determine the amount recoverable by Liberty Mutual. (Appeal from Order of Supreme Court, Oswego County, Nicholson, J. — Lien.) Present — Pigott, Jr., P. J., Green, Hayes, Burns and Lawton, JJ.