ALAM v. Hereford Insurance Company, nonparty-appellant, et al., defendants. (2008)

In an action to recover damages for personal injuries, nonparty Hereford Insurance Company appeals from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated July 11, 2007, as granted the plaintiff's motion to approve a settlement, nunc pro tunc, and to extinguish its Workers' Compensation lien.

ORDERED that on the Court's own motion, the notice of appeal is deemed to be a notice of appeal by the nonparty Hereford Insurance Company (see CPLR 2001;  Matter of Tagliaferri v. Weiler, 1 N.Y.3d 605, 775 N.Y.S.2d 753, 807 N.E.2d 864;  Wolff v. Hubert, 200 App.Div. 124, 192 N.Y.S. 801);  and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff's motion is denied.

Contrary to the Supreme Court's determination, nonparty Hereford Insurance Company (hereinafter Hereford) may assert a Workers' Compensation lien against the plaintiff's proposed settlement with the defendants Hercules Tire and Rubber Company and Cooper Tire and Rubber Company, noncovered persons (see Insurance Law § 5104[b] ), in this action (see Workers' Compensation Law § 29[1];  Matter of McHenry v. State Ins. Fund, 236 A.D.2d 89, 666 N.Y.S.2d 221;  Stedman v. City of New York, 107 A.D.2d 600, 483 N.Y.S.2d 1013;  cf. Aetna Cas. & Sur. Co. v. Jackowe, 96 A.D.2d 37, 42, 468 N.Y.S.2d 153).   Since Hereford may assert its lien, the plaintiff was required to comply with the provisions of Workers' Compensation Law § 29(5).   The plaintiff's motion papers failed to include much of the information required by Workers' Compensation Law § 29(5) and it was supported only by a rather conclusory affidavit from the plaintiff's counsel.   Accordingly, the court erred in granting the plaintiff's motion to judicially approve the settlement and to extinguish Hereford's lien (see Matter of Snyder v. CNA Ins. Cos., 306 A.D.2d 677, 762 N.Y.S.2d 131).