Opinion
11-25-2015
In the Matter of Anthony RUSSO, respondent, v. NEW HAMPSHIRE INSURANCE CO., et al., appellants.
Foley, Smit, O'Boyle & Weisman, Hauppauge, N.Y. (Aaron E. Meyer of counsel), for appellants. Jacoby & Meyers, LLP, Newburgh, N.Y. (Finkelstein & Partners, LLP [Lawrence D. Lissauer ], of counsel), for respondent.
Foley, Smit, O'Boyle & Weisman, Hauppauge, N.Y. (Aaron E. Meyer of counsel), for appellants.
Jacoby & Meyers, LLP, Newburgh, N.Y. (Finkelstein & Partners, LLP [Lawrence D. Lissauer ], of counsel), for respondent.
L. PRISCILLA HALL, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.
In a proceeding pursuant to Workers' Compensation Law § 29(5), in effect, for judicial approval of a settlement nunc pro tunc, New Hampshire Insurance Co., AIG Claims, Inc., and Sedgwick Claims Management Services, Inc., appeal from an order of the Supreme Court, Nassau County (Iannacci, J.), entered October 1, 2014, which granted the petition.
ORDERED that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.
On July 30, 2012, the petitioner was injured in an automobile accident during the course of his employment. Workers' Compensation benefits were paid by the petitioner's employer's compensation carrier, the appellants, New Hampshire Insurance Co., AIG Claims, Inc., and Sedgwick Claims Management Services, Inc. (hereinafter collectively the carrier). At the time of the accident, the vehicle which struck the petitioner's vehicle allegedly was insured by State Farm Mutual Automobile Insurance Company (hereinafter State Farm) pursuant to a policy with a bodily injury liability limit of $25,000 per person. No action was commenced against the owner or operator of the vehicle that struck the petitioner. At some point, State Farm tendered the $25,000 policy to the petitioner, which the petitioner accepted without obtaining the consent of the carrier. In June 2014, the petitioner commenced this proceeding, in effect, for judicial approval of the settlement nunc pro tunc. In the order appealed from, the Supreme Court granted the petition. We reverse.
Pursuant to Workers' Compensation Law § 29(5), "an employee may settle a lawsuit arising out of the same incident as his or her Workers' Compensation claim for less than the amount of compensation he or she has received only if the employee has obtained either written consent to the settlement from the compensation carrier, or judicial approval within three months after the case has been settled" (Matter of Williams v. Orange & Sullivan Excavating Corp., 114 A.D.3d 802, 803, 979 N.Y.S.2d 850 ; see Matter of Johnson v. Buffalo & Erie County Private Indus. Council, 84 N.Y.2d 13, 19, 613 N.Y.S.2d 861, 636 N.E.2d 1394 ). However, where, as here, no third-party action was ever commenced on the claim to which the settlement relates, the Supreme Court is without authority to grant a petition pursuant to Workers' Compensation Law § 29(5) to approve a settlement nunc pro tunc (see Matter of Cruz v. First Cardinal Corp., 273 A.D.2d 233, 709 N.Y.S.2d 447 ; Kosiorek v. University of Rochester, 152 A.D.2d 927, 543 N.Y.S.2d 833 ; Matter of Gherghi v. Hereford Ins. Co., 37 Misc.3d 1215[A], 2012 N.Y. Slip Op. 52041[U] [Sup.Ct., Queens County] ; Matter of DeRosa v. Aetna Cas. & Sur. Co., 186 Misc.2d 87, 92, 715 N.Y.S.2d 597 [Sup.Ct., Broome County] ). Accordingly, the Supreme Court should have denied the petition and dismissed the proceeding.
In light of our determination, we need not reach the parties' remaining contentions.