NEBLETT v. New York City Department of Correction, nonparty appellant. (1999)

In an action to recover damages for personal injuries, the plaintiff's employer, the New York City Department of Correction, appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated November 5, 1997, which granted the plaintiff's motion in lieu of a petition pursuant to Workers' Compensation Law § 29 permitting her to settle the action for $30,000.

ORDERED that the order is affirmed, with costs.

 The Supreme Court did not improvidently exercise its discretion in allowing the plaintiff to settle the action where such settlement was reasonable in view of the low probability that the plaintiff would be able to convince a jury that her alleged disability had been caused by the automobile accident (see, e.g., Matter of McCaffrey v. James L. Lewis, Inc., 225 A.D.2d 981, 983, 639 N.Y.S.2d 526;  Matter of Volpe v. Fireman's Fund Ins. Co., 54 Misc.2d 212, 282 N.Y.S.2d 69).   A court may approve a compromise order between a claimant for Workers' Compensation benefits and a defendant in a related action before the Workers' Compensation Board has determined the carrier's potential compensation liability (see, Matter of Nachison v. Phoenix of Hartford Ins. Co., 30 A.D.2d 499, 294 N.Y.S.2d 363;  see also, Matter of Miller v. Arrow Carriers Corp., 130 A.D.2d 279, 520 N.Y.S.2d 76).   There is no prejudice to the carrier because it retains the right to offset any future compensation benefits by the amount of the plaintiff's net recovery (see, e.g., Matter of Parmelee v. International Paper Co., 157 A.D.2d 878, 550 N.Y.S.2d 150;  Matter of Durham v. Barker Chem. Corp., 151 A.D.2d 887, 543 N.Y.S.2d 182).

 Although the plaintiff's treating physician did not submit an affidavit, the record contains a letter, as well as numerous reports and office records from him, containing most of the medical and treatment information required by Workers' Compensation Law § 29(5) (see, e.g., Matter of Spurling v. Beach, 93 A.D.2d 306, 308, 463 N.Y.S.2d 293).

MEMORANDUM BY THE COURT.