NYCL AGO 95-F1.

• Case Date: March 30, 1995
• Court: New York

New York Attorney General Opinions 1995. AGO 95-F1. March 30, 1995Formal Opinion No. 95-F1Hon. Barbara A. Leak Chairperson Crime Victims Board 845 Central Avenue, Rm. 107 Albany, NY 12206-1588EXECUTIVE LAW §§ 620, 623, 624, 634(1) and (2); WORKERS' COMPENSATION LAW §§ 29; L 1982, CH 513; L 1985 CH 688.Compromise or settlement by the Crime Victims Board of the amount of lien which attaches to a recovery, pursuant to Executive Law § 634(2), may or may not constitute a waiver of lien which attaches to a subsequent recovery or waiver of subrogation rights, set forth in Executive Law § 634(1)(a). The intent of the parties as evidenced by the record of proceedings governs.Dear Chairperson Leak: Your counsel inquires whether compromise or settlement by the Crime Victims Board (the "Board") of the amount of a lien which attaches to proceeds of a recovery, pursuant to Executive Law § 634(2) (the "Ex L"), necessarily constitutes waiver of a lien that might otherwise attach to proceeds of a subsequent recovery or waiver of the State's right of subrogation, set forth in Ex L § 634(1)(a). We conclude that compromise or settlement of the amount of a lien may or may not effect waiver of a subsequent lien or waiver of subrogation rights, depending upon the intentions of the parties as evidenced by the record of proceeding. The Board is authorized to make awards to victims of crimes or claimants of such victims (Ex L §§ 620, 623, 624). Executive Law § 634 sets forth various mechanisms whereby the State may recover the amount of the award. Executive Law § 634(1)(a) provides that

acceptance of an award . . . subrogates the state, to the extent of such award, to any right or right of action accruing to the claimant or the victim to recover payments on account of losses resulting from the crime with respect to which the award is made.

The claimant's failure timely to commence an action against the assailant or any third party who may be liable operates as an assignment to the State of the claimant's cause of action, but only to the extent of the award. Ex L § 634(1)(a). The Attorney General may commence an action against an assailant or third party for money damages to the extent of the award, and the claimant may intervene in such an action. Ex L § 634(1)(c). Executive Law § 634(2) creates a statutory lien, upon acceptance of an...