IN RE: Linda R. CARLONE (2018)

DECISION & ORDER

In a proceeding pursuant to Workers' Compensation Law § 29(5) for judicial approval of a settlement of a personal injury action nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Nassau County (K. Murphy, J.), entered July 19, 2016, which denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

The petitioner was involved in a motor vehicle accident that allegedly caused her to sustain serious personal injuries.  She filed a claim for workers' compensation benefits, which, though contested, was granted upon a finding that the accident occurred during the course of her employment.

The petitioner commenced an action against the driver of the other vehicle involved in the accident, alleging that she sustained serious injuries due to the other driver's negligence.  After the other driver died, a second action naming the Public Administrator of Nassau County as the defendant was commenced.  The parties in the second action reached a settlement in which the defendant in that action agreed to pay the petitioner $7,500 from a policy with limits of $100,000.  The petitioner had not obtained the prior approval of the petitioner's workers' compensation insurance carrier, Utica Mutual Assurance Company (hereinafter Utica).  Upon learning of the settlement, Utica terminated the petitioner's workers' compensation benefits.

Within three months of the settlement, the petitioner commenced this proceeding pursuant to Workers' Compensation Law § 29(5) for judicial approval of the settlement of the personal injury action nunc pro tunc.  In opposition, Utica contended that its interests were not adequately protected by the settlement.  The Supreme Court denied the petition and, in effect, dismissed the proceeding without a hearing, finding that the petitioner failed to establish the reasonableness of the settlement.  The petitioner appeals.

Pursuant to Workers' Compensation Law § 29(5), an employee who is the recipient of workers' compensation benefits may settle a third-party claim arising out of the same accident without prejudice to the continued payment of benefits upon “obtaining either the written consent of the compensation carrier before the [settlement], or judicial approval of the [settlement] within three months after it” (Furtado v. Mario's Bakery, 17 A.D.3d 527, 528, 793 N.Y.S.2d 506;  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;  Lobban v. Brown, 125 A.D.3d 612, 613, 3 N.Y.S.3d 110;  Matter of Jackson v. City of New York, 70 A.D.3d 694, 695, 896 N.Y.S.2d 361).

“The resolution of an application for nunc pro tunc approval of a settlement pursuant to Workers' Compensation Law § 29(5) is left to the discretion of the court” (Zamfino v. Furman, 1 A.D.3d 591, 592, 767 N.Y.S.2d 634;  see Lobban v. Brown, 125 A.D.3d at 613, 3 N.Y.S.3d 110;  Fidelity & Guar. Ins. Co. v. DiGiacomo, 125 A.D.3d 596, 599, 3 N.Y.S.3d 384).  Here, the petition and the supporting papers failed to include much of the information required by Workers' Compensation Law § 29(5) (see Alam v. Taxi Wheels to Lease, Inc., 57 A.D.3d 457, 458, 868 N.Y.S.2d 750;  Matter of Snyder v. CNA Ins. Cos., 306 A.D.2d 677, 678, 762 N.Y.S.2d 131).  Accordingly, the Supreme Court did not improvidently exercise its discretion in declining to approve the petitioner's settlement with the third party nunc pro tunc (see Matter of Hermance v. Fireman's Fund Ins. Co., 265 A.D.2d 328, 328–329, 696 N.Y.S.2d 482).

RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.