McQueer v. Adirondack Tank Servs., Inc.

1 Citing case

  1. Lala v. Siteworks Contracting Corp.

    151 A.D.3d 1150 (N.Y. App. Div. 2017)

    Here, the WCLJ directed the carrier to make weekly payments of $177.30 to claimant in accordance with Burns and relieved the carrier of its obligation to pay the remaining $322.70 per week during the holiday period. Although the consent order specifically reserved the carrier's right to take the credit, it did not clearly set forth the manner in which the carrier's equitable share of litigation expenses would be taken into account in calculating the amount of the credit and this ambiguity may be resolved against the carrier (see Matter of Brisson v County of Onondaga, 6 NY3d 273, 279 [2006]; Matter of Stenson v New York State Dept. of Transp., 84 AD3d at 26; compare Matter of McQueer v Adirondack Tank Servs. Inc., 142 AD3d 743, 744-745 [2016]). The WCLJ deducted the carrier's proportionate share of litigation expenses directly from claimant's net recovery to determine the amount of the credit and then divided this figure by $322.70, the portion of the $500 weekly compensation payments that the carrier was relieved of paying during the holiday period, to conclude that the credit was exhausted after 129 weeks — i.e., on August 20, 2013.