Opinion
9196/08
01-09-2012
Willie E. Moore, Plaintiff, v. Rockland Kosher Supermarket, American Tack Co., Inc., Robert Pitt Realty, LLC and Shoppers Haven, LLC, Defendants.
Attorney for Plaintiff: Brecher, Fishman & Pasternack Attorney for Defendant: James Toomey, Hoey, King & Toker, Stewart Friedman
Attorney for Plaintiff: Brecher, Fishman & Pasternack
Attorney for Defendant: James Toomey, Hoey, King & Toker, Stewart Friedman
David I. Schmidt, J.
Plaintiff Willie E. Moore (Moore) moves for an order, pursuant to Section 29 (5) of the Workers' Compensation Law (WCL), approving and confirming, nunc pro tunc, his settlement of the instant negligence action. As discussed below, the court herein grants plaintiff's motion.
By stipulation dated September 8, 2011, the parties agreed to convert plaintiff's initial motion pursuant to Section 29 (1) of the WCL, made on or about July 26, 2010, to a motion under Section 29 (5). In plaintiff's initial motion, he sought an order, pursuant to WCL § 29 (1), granting a judicial determination that:
(a) plaintiff's future workers' compensation right to post-settlement benefits are preserved under Burns v Varriale, despite the carrier's refusal to incorporate such language in its consent letter;
(b) the workers' compensation carrier's obligation to periodically pay its equitable share of the future costs of litigation, including attorney's fees incurred to secure such future benefits under WCL § 29, are preserved despite the carrier's refusal to incorporate such language in its consent letter;
(c) the percentage of litigation costs is calculated at 34.7% for the purpose of determining the carrier's equitable share of the future costs of litigation, including attorney's fees incurred to secure such future benefits WCL § 29; and
(d) plaintiff/claimant is owed $9,566.10, representing the carrier's total equitable contribution towards the future costs of litigation during the "holiday" period.
The instant negligence action arises out of a work-related accident which took place on December 15, 2005 at a construction work site. Plaintiff, who was then a seventy year old truck driver working for Service Smoked Fishland (Smoked Fishland), was making a delivery to defendant Rockland Kosher Supermarket (Rockland), located at 24 Orchated Street, No.27 in Monsey, New York. During the delivery, he tripped over and fell due to a piece of plywood or debris generated by defendant Rockland's repairs to the roof of its building. Due to the fall, Moore sustained injuries, including an ankle fracture, which required surgeries for his right ankle and knee. On or about March 18, 2008, plaintiff commenced this negligence action alleging Labor Law § 240 (1), 241 (6), 200, and common-law negligence claims against the owner of the property and general contractor performing construction.
Plaintiff filed for and received Workers' Compensation benefits as a result of the accident. Retailers of New York Workers' Compensation Trust (the Carrier) is the self-insured workers' compensation carrier of Smoked Fishland. Moore's claim is managed by third-party administrator First Cardinal, LLC (First Cardinal), on behalf of the Carrier.
Following a Workers' Compensation hearing on May 20, 2010, the Workers' Compensation Board (WCB) directed the Carrier to pay plaintiff a weekly compensation rate of $200. The decision of Workers' Compensation Law Judge John Loughlin (WCLJ Loughlin), dated May 25, 2010, accepted the parties' stipulation classifying plaintiff as permanently partially disabled and ordered the Carrier to continue payments at $200 for permanent partial disability.
Plaintiff states that the WCB determined that plaintiff/claimant's average weekly wage for the year prior to the date of injury was $968.94, but the court notes that plaintiff inadvertently appended a Proposed Decision regarding an entirely different claimant, who was not Willie Moore, (see Proposed Decision, annexed as Exhibit A to plaintiff's motion papers). However, such error does not impact the court's decision herein.
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The parties in the third-party action eventually entered settlement discussions. Based on the negotiated offer of $132,500, the parties sought written consent from the Carrier's agent, First Cardinal. On March 14, 2011, First Cardinal, issued a consent letter to settle the third-party action based on the negotiated amount. Thereafter, a subsequent final settlement offer of $145,000 was negotiated subject to First Cardinal's approval. The Carrier issued a second consent letter, dated July 14, 2011, agreeing to settle the third-party action for the sum of $145,000. However, the parties could not agree on the language in the letter regarding plaintiff's right to future compensation benefits, First Cardinal's equitable share of future expenses and attorney fees, and whether this was a deficiency compensation action pursuant to WCL § 29 (4). Although the parties notified the court of the settlement by letter dated July 26, 2011, First Cardinal did not ultimately consent to the settlement of the action for $145,000. As of plaintiff's initial motion, the Carrier had paid plaintiff approximately $56,479.28 in workers' compensation benefits at the $200 per week rate.
After the parties agreed to convert plaintiff's initial motion into a Section 29 (5) motion, plaintiff submitted: (1) the affirmation of counsel; (2) this court's order converting the instant motion into one under Section 29 (5); (3) the medical records and narrative reports of plaintiff's treating physicians, Drs. Ludwig Licciardi and William J. Lackey, including the report of an examination conducted of plaintiff on January 17, 2011; (4) Beth Israel Medical Center admission records for plaintiff's open reduction internal fixation of the right ankle; (5) Maimonides Medical Center admission records for plaintiff's anthroscopic partial mediolateral meniscectomy and abrasion chrondroplasty of the right knee patellofemoral joint; (6) additional medical records from Drs. Licciardi and Lackey; (7) First Cardinal's workers' compensation lien letter, dated July 14, 2011; (8) a printout listing medical payments made by First Cardinal; and (9) medical services bills from plaintiff's medical providers. In support of his motion, plaintiff maintains that the amount of the settlement is fair and reasonable given the notice and comparative negligence issues regarding liability and damages, including pre-existing degenerative disc disease and osteoarthritic changes, and the likelihood that plaintiff would not be able to drive a delivery truck past the age of 70 years.
In opposition, First Cardinal argues that plaintiff fails to demonstrate the reasonableness of the settlement because plaintiff does not present any information on the defendant-tortfeasor's insurance policies and or other assets, nor does plaintiff set forth the history of the litigation and/or discovery in this action. It also contends that plaintiff fails to establish that First Cardinal was not prejudiced by any delay by plaintiff in seeking a judicial order of approval of the settlement.
Workers' Compensation Law § 29 (5) provides, in applicable part, that:
"[a] compromise of any such cause of action by the employee or his dependents at an amount less than the compensation provided for by this chapter shall be made only with the written approval of the commissioners of the state insurance fund or such officer thereof designated by them, if the deficiency of compensation would be payable from the state insurance fund, and otherwise with the written approval of the person, association, corporation, or insurance carrier liable to pay the same. However, written approval of the commissioners of the state insurance fund or such officer thereof designated by them or written approval of the person, association, corporation, or the insurance carrier need not be obtained if the employee or his dependents obtain a compromise order from a justice of the court in which the third-party action was pending. The papers upon an application to compromise and settle such a claim shall consist of the petition, the affidavit of the attorney, and the affidavit of one or more physicians."Workers' Compensation Law § 29 (5) thus requires an employee to either obtain the consent of the subject workers' compensation benefits carrier at the time of settlement, or, within three months after settlement, an order of the court on notice to the carrier approving a settlement for less than the compensation provided by law. Should a claimant fail to do so, the result is the loss of future workers' compensation benefits (see e.g. Stiffen v CNA Ins. Cos., 282 AD2d 991, 992 [2001], lv denied 97 NY2d 612 [2002]; Wright v Golden Arrow Line, 206 AD2d 759, 760 [1994]; Matter of Daly v Michael Daly Constr. Corp., 136 AD2d 798 [1988], lv denied 72 NY2d 807 [1988]). A judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even in cases where the approval is sought more than three months after the date of the settlement, provided that the petitioner can establish that: (1) the amount of the settlement is reasonable; (2) the delay in applying for a judicial order of approval was not caused by the petitioner's fault or neglect; and (3) the carrier was not prejudiced by the delay (Stiffen, 282 AD2d at 992 [2001], citing Matter of Wilbur v Utica Mut. Co., 228 AD2d 928 [1996]; see also Matter of Rifenburgh v James, 297 AD2d 901, 902 [2002]; Matter of Bernthon v Utica Mut. Ins. Co., 279 AD2d 728, 728-729 [2001]; Matter of Consolazio [Merchants Mut. Ins. Co.], 272 AD2d 614, 614-615 [2000]; Harosh v Diaz, 253 AD2d 850, 851 [1998]; Matter of Gilson v National Union Fire Ins. Co., 246 AD2d 897, 897 [1998]). Resolution of an application for judicial approval of a settlement pursuant to Workers' Compensation Law § 29 (5) is committed to the discretion of the court (see Hargrove v Becom Real, Inc., 287 AD2d 598, 599 [2001]; see also Matter of Hermance v Fireman's Fund Ins. Co., 265 AD2d 328 [1999]; Matter of Gilson v National Union Fire Ins. Co., 246 AD2d 897 [1998]).
The court finds that plaintiff's showing of reasonableness is sufficient to present a basis for exercising its judicial discretion in approving, nunc pro tunc, the $145,000 settlement against defendants in this negligence action. Although plaintiff did not obtain formal affidavits from his treating physicians in support of the motion, such information is sufficient given the medical reports and records from those physicians submitted in lieu (see Neblett v Davis, 260 AD2d 559 [1999]). In light of the pre-existing degenerative disc disease and osteoarthritic changes raised by plaintiff, the court finds that the settlement amount is reasonable and warrants granting the instant motion. The court notes that plaintiff sought judicial involvement quickly, as his initial motion was made shortly after settlement, and finds no evidence that First Cardinal was prejudiced by any delay.Accordingly, it is
ORDERED that plaintiff's motion for nunc pro tunc approval of the settlement of the negligence action is granted.
The foregoing constitutes the decision and order of the court.
ENTER,
J. S. C.