Monda v City of New York

Annotate this Case

Download PDF

Monda v City of New York 2011 NY Slip Op 32496(U) September 19, 2011 Sup Ct, NY County Docket Number: 104884/03 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNEDON912112011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART . -"-'I ' \I MONDA, BARTOLOMEO CITY OF NEW YORK SEQUENCE NUMBER 007 LA - - - - - - - - - - - -----I - - - - - - - - - - - - - - - - - .___. _v "I uraer r r m u ~ ~ ~ ~ ~ / to Answering Affidavits show Cause ', I - Affidavits - Exhibits I ._. -- --- [A Yes t L d \ ! , , u\\- PAPERS NUMBERED - Exhlbits qeplying Affidavits Cross-Motion: this motion to/for ( . $ , > . , J ' f , \ ' I 1 : -7 7, H N o Upon the foregoing papers, it is ordered that thls motion Check one: r(FlNAL Check if appropriate: L-1 DISPOSITION DO NOT POST SUBMIT ORDER/ JUDG. 1 NON-qNAL DISPOS1'610N 1 17 REFERENCE r-1 SETTLE ORDER/JUDG. ' :,.- \ { ' > \ V V . [* 2] Index No. 104X84/03 I' I a inti lf, -against- Argued: Motion Seq. No.: Motion Cal. No.: 6/28/1 I 007 76 DECISION AND OliDER 111 i rd -Party P1ai nt ilf, -against- NOR1'1 IS'TAR C'ON'I'RAC'I'INC; COKP. &/a NORTHSTAK EI.ECTRIc'A1. CONTRACTING COKP., For p la i 11 tiff: 14arry I. Kalz, Esq. Hnii-y I . Kat7, I' C. 6 1-25 IJLopia Parkway Fresh Meadows, NY 1 1365 7 18-463-3700 For Northstar, Elite, and Neuman: Allagracia A , Davis, Esq. Davis k Venturini 176 Woodbury Road IIicksvillc, N Y 11801 5 16-933-4080 Hy notice of molion datcd March 22, 201 1, plairitil'i'moves pursuant 10 Workers C'ompeiisation Law $ 29(5) i'or a 1 order co~r~pelling Contractors Trnst of New Yorb (Elite), 1 Elitc Workcrs C'oinpciisatioii carrier for third-paily ckf'eiidant Northstar Contracting Corporation (N orthslar ). uncl Neu n i m c' I aims Adin i 11 istralors ( N eunian), its third-party adiniii i st rator, to conscnt LO a proposed sellleincnl, aiid an order declaring that thc Workers Cumpcnsation lien be reduced to zci-o. Northstar, Elite, and Neuman oppose and, without serving a nolice of cross- [* 3] iiiolion, seeh a11clrder compelling plain(i1Z'to rcimhiirsc them 1 r Workcl-x C'oinpcns~itjonbcnctits b paid by tlicm. I. L3AC'KC;ROUNr3 On . I L I 24, 1998, plaintiil; ~~ B coiistructioii laborer, sustained physical injurics as a result ol' a work-rclnled accident lor. which hc rcceived aiicl contjnucs to receive Workers Compensation benctlts. (Al'lirmation olHarry I. Katz, Esq., datcd March 22, 201 1 [Katz Aff.]). Following the I accident, he returiicd to work fill-tiinc, and 011 September 27, 2002, suslaiiicd additional physical hjurjcs as ii result oi'a second work-l-elated accident. (Allirination or Hal-iy I. Katz, Gsq., in Reply, dated Apr. 28, 201 1 [Kaiz Reply A K I). I'laintilTiicver returiied to work. ( I d ) . On March 1 7, 2003, plainti~~conimeiiccd instant action with the filing of a summons the and veriikd complaint, asserting negligence claims against dcfendants arising iYom the Septcmber 27, 2002 accidcnl. (Katz All., Exli. A). Sometime latcr, City coninieiiccd a third-party aclion against Nortlistar. (Id.). By lettcr dated April 27, 2005, Coiiipcnsatioii Kisk Managers, Ll C , then Elile's thirdparty administrator, ini'ormcd plaintiff that its Workers Compensation lien totaled $90,335 -09. (Id., Exh. I;). On July 1, 2008, plaintiff receivcd ii-om Elite a lien statement indicating that tlic Workers Exh. F). Compensation lien totaled $1 70,375.54. (Id, In July 01-3010, delkndaiits ofkrcd plainlifY $6 10,000 to settle thc matlcr. ( I d , Exhs. 13, By lctter cialed Iuly 30, 201 0, plaintiff apprised Ncuman of the settlement offer and that he had been dcclared permanently totally disabled and requested that it consent in writing to the 2 [* 4] sctllement. ( I d , Esh. (3). By lcttcr dated August 6 , 20 10, Nc~iii~iii infornied thc Special Funds C onservation C otiimittee (Special 1;unds) that its lien totaled $1 70.375.54 and askcd that it conscnt to thc settlcment. (Id., Ex11 1-1). On or about Septcmber 2. 20 1 0,plaiiitjff receivcd froin Ncuiiian an itemized statcnienl iiidicatiiig that it paid him $1 88,206.50 in Workcrs Compensation bcnelits bctween September 27, 7,002 aiid August 1, 2010. ( I d , Exh. I). On Dccciiiber 2, 20 10, a Workers C ompensation Law .judge dcterinincd alter a hearing that Northstar and/or Elitc must pay plaintiff $400 a \vcek in Workers Compensation benefits, that the benctits are q p r l i o n e d 75 percciit to thc Scptembcl- 27, 2002 accidcnt and 25 perccnt to tllc July 24, 1998 accidcnt, retroactive to March 16, 2004, and that thc award is without prqjudice to Workcrs Compcnsatioii 1,aw 5 1S( 8), which provides that a carrier i m y seek rcinibursenient for beiicfits paid wliere a claiman1 had a preexisting injury if it can demonstrate that the injury is niore severc than it would havc been h i i the subsequent accident alone. ( I d , Exh. K). By letter daled Dcccniber 10, 20 10, Ncuman informed plaintill that i t was not coilsenling to Ihe scttlement aiid asked that he provide it with a Ibrmal written request for its consent, specilyiiig thiit portion of the scttlement attributablc to the Scpteinbcr 27, 2002 accident. (Id , Exh. J), Ry letter daled Deccimhcr 14, 201 0, plaintiff responded that tlic entire settlement related to the September 27, 2002 accident and requested Ncuman s consent tlicreto. (Id., Exh. 1,). By letter dated lleceinbcr 17, 201 0, Special Funds inlbrmed Neutnan that its claim hi* reimburscmenl pursuant to Wol-lters Coiiipciisation J ,aw $ 1S( 8) pended, that it provisionally consenls to the setllcmcnt, and that it asserts full ofl sct and credit rights against plaintiffs net [* 5] rccovery. (Afhnatioii of Altngrncia A. I h v i s , Lsq., in Opposition, dated Apr. 25. 201 1 [llavis Opp. Aff.]). By Ictkr dated Decembcr 22, 201 0,hTeuiiiaii inibrmcd plaintifl'tliat the lotnl i~mount l ils o lien was $170,375.54, that Special Funds provisionally consented to h e setllemeiit, and that it consented to thc scttlement sut?ject to satishction of its $56,791.85 lien. (Id., Exh. M). L3y lclter dated Deceiiibcr 24, 201 0, plaiiitiff asked Ncuiiiaii to recalculate the lien to rellect the Workers C'ompensation Law judgt.'~ apportionnient (id., Exh. N), a i d by letter dntcd J a i i ~ i ~ y20 1 I , Ncuiiian told plaintil'f that lhc numbers iiiclLidec1 in its Dccernbcr 22, 201 0 letter. 4, took into account the apportioimienl (id, Exh. 0). On I;cbruary 8, 201 1, a Workers Compensation Law judge dcterinined, aftcr another hearing, h a t Northstar and/or Elite musl continire to pay plaintiff $400 per wccli and thal h i s amount was still subject to the 75 pcrcent/25 percent apportioiiiment. (Zd., Exli. 1)). 11. P1,AIN'I'J IFF'S MOTION A. Contentions v F~incl, NY2d 13 I 60 Plaintiff claims that, pursuanl to hlcrttcr c!j'Kdlj~ ,St:tate I~surance ( 1 983), Elitc and Neuman should pay tlicir pro rata share of his counsel fees and litigation costs, and upon that apportionment, the lien will be reduced to zero. (Jd.). ln support oi'this claim, plaintiff'sets forrh a calculation of Elite and Neuman's pro rata share demonstrating that the arnount cxceeds tlic amount of the lien attributed to the September 27, 2002 accident. (Id.). In opposition, Northstar, Elite, and Neuniaii concede that plaintifi' was classitied as permanently totally disabled but nevcrtheless contend that, pursuant to B14rn.v1' Vm-ri~il~?, Y 3d 9N 207 (2007), M o f f w of KclIj~ inapplicable, as plaintill's Workers Cornpensatiun hciieiits Iiave is been ,~pportioncdbetween thc July 24, 1998 and Scpternber 27, 2002 accidents, and thus, that 4 [* 6] plaintirl s c,alculation 01. thcir iirturc benct3s payment obligatioii is speculativt.. (Davis Opp. Aff,). In reply, plaintiff mailitailis that appork)niiicnt of his bendits does not rcnder . h h l l ~ of r Kvl/y inapplicable, as 110 spccific Gilding was madc as to whether the second accident alone caused his permanent disability, and the judge s decision was made without prejudice to Elite and Neuiiian s right to seek rcimburseriieut pursuant to Workers C: ompensationLaw 5 1 S(8). (Katz Kcply Aff.). I n any event, he claiiiis that hkrltcr. of h cll)~ applies rcgardlcss of whether one or both ofthe accidcnls caused his disability, as he cmnot return to work and will thus continue to receivc the same benefits. ( I d ) , B. Analvsis S d o i i 29 of the Workers C oiiipeiisation I,aw governs the rights and obligations of L h > . cimployecs, their dependents, m d compensation call-iers with respect to actiolis arising out of injuries caused by third-party tortfcasors. (Multcr ofKelly, 60 NY2d at 136). l halstatute pelinits ;L claimant to bring an action agajiist a tliird-party tortfeasor and continuc to receive Workers Coiiipeiisation beiicfits and provides that if he recovers in that action, the Workers Compcnsation carrier is granted ; 1 licii on that recovery in an amount cqual to the compensation it paid plus interest thereon. (Workers Compensation 1,aw $ 29[1]), As a claimant must obtain tbc pursuant to carrier s wrilten consent before settling with a third-party tortfeasor, he niay ~iiove Workers Compensation Law (Muttc r qf,Jcilmsori it 5 29(5) I or a conipromisc order if the carrier wilhliolds consent. Bi@lo & Eric C oiinty Privutc Indzu. C oimcil, 84 NY2d 13, 19 [1994]). A claimant riiay also move for an order equitably apportioning his couiisel fees and litigation costs between him and the carricr. (Workers Compensation Law $ 29[1 I). As a claimaiit s recovery fioni a third-party torlleasnr beiicfils thc carrjcr by permitting it to recoup its past bciielits payments and extinguishing its fiiture bciieGts obligations, the Court of Appeals in 5 [* 7] Mutter i?J KcllyIield that thc carricr must contrihutc t o tlic cmsts of litigation jii proportion to ihc benefit it has received," namcly the past benefits paid and tlic presciit value of its h t u r e bcnelits obligations. (60 NY2d at 140). The carrier's lien is tlien o f k t by this anlount. (Id.). In B i ~ n s thc Co~irl , limited its holding in h cllji io only those ctlscs in which the claimmt receives bcnelits lhr total disabi lily, dcatli, or scheclulc loss olusc, as the hlurc benciils i n these casts may be rcliably cnlculated. (9 NY3cl 207). Where ii claimant rcceivcs lotal disability bencfits, the Court noted, therc is 110 expcctation that he or slic will rejoin the workforce[, and] [a]ccordingly, the coinpensalion bencfi ts awardcd 10 such employee d o not iluctuatc imd continue for the duration of the eniployce s life, which can be reliably predicted using life expcctaiicy Lablcs. ( I d . at 215-1 6). Pursuant to Workers Colnpensation Law 8 15(8), if ; claimant liad a preexisting injury 1 belore sustaining the work-relatcd insjury for which hc is receiving Workers Compensation bcnefits, and he has becn reiidered periiiaiiently disabled, the carrier may be reiinhursed by the special disability fund if it can demonstrate tliat tlic injury is malerially and substantially greater than that which would have rcxultcd Lroin thc subsequent injury . . , done." Here, therc is no dispute that plaintilf has hcen classi~kd permanently totally disabled, as and thus, he will continue to receive tlie same total beneiits award. Moreovcr, the Workers Coinpeiisation J ,aw Judge ncither specit?cally identified the cause of plaintilt s permanent total disability nor iiidicatcd that the apportionmcnl would change xubjcct to such a finding. As Northstar, Elite, and Neuiiian provide no authority f b r the proposition that apportionment of plaintiff s benciits rcnders their fLiurc bencfits obligations speculative, and absent dispute as to how plaintiff calculated tlicir eq~iitablc sliiirc of his counsel fces iiiid litigation costs, aside h i i i tlic lirture beiiciils, plaintiff is cntitlecl to cquitalile apportionment olhis counsel fces and litigation I; [* 8] costs in accordanci: with his calculation s d i h i t the lien is nullificd. [PI. C ROSS-MO HON Northstar-, Elitc, and Neurnan s application for ;in ordcr compelling plainliff to r-eiimhursc them for-the Workers Compensation beliefits they havc already paid and wi II pay in the future is iiiipropcrly interposed absctit a noticc o r cross-motion scekiiig such relicl.. (CPLR 22 1 5; Connors, Practice Clommcntarics, McKinncy s Cons Laws of NY, CPLK C22 15: 111 [20 10 main vol]; Sicgel, N Y Prac 5 249 [3d ed]; .SLY Xincxldi v Rochji)rO, 77 AD3d 720 [2d Dcpt 20101 [to extent plaintiff requested rcliel in opposition to dcfcndant s motion, relicf should have been sought in notice ol cross-motion]; C hzin 17 N O ~ IAm. M g e . Co., 285 AD2d 42 [lst Dept 20011 [court had /I no jurisdiclioii t o grant relief to defendants abscnt notice of cross-motion]). 1V. C ONC,~L IJSION Accor-dingly, it is hereby OIZDERED, that plaintifrs motion to compel Hite and Neuinan to consent to the settlcment and to equitably share in his counsel fecs and litigation costs such that their Workers C,hmpcnsatioii lien is reduced to zero is granled. ENTER: Barbara Jaff DAI RD: Scpternhcr 19, 201 1 New York, New York , JSC BARBA R L A F F E L * .. ,. J.S.I=. SEP 1 I) 2011 NEW YOHK COUNTY CLERK S OFFICE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.