Humphries v Consolidated Edison Co. of NY Inc.

Humphries v Consolidated Edison Co. of NY Inc. 2013 NY Slip Op 03785 Decided on May 28, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 28, 2013
Acosta, J.P., Renwick, Richter, Feinman, JJ.
10216 104148/97

[*1]Catherine Humphries, as Executor of the Estate of William Mistofsky, Petitioner-Respondent,

v

Consolidated Edison Co. of NY Inc., Respondent-Appellant.




Vecchione, Vecchione & Connors, LLP, Garden City Park
(Michael F. Vecchione of counsel), for appellant.
Wilentz, Goldman & Spitzer, P.A., New York (Kevin M. Berry
of counsel), for respondent.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered January 4, 2012, which, among other things, granted petitioner's motion to approve, nunc pro tunc, settlements previously entered into between petitioner and four nonparties (defendants in the underlying class action asbestos litigation), and directed petitioner's counsel to amend the caption to reflect the substitution of the estate of the deceased as petitioner, unanimously affirmed, with costs.

The court properly granted a nunc pro tunc substitution of petitioner, where she had been appointed executor of decedent's estate shortly after his death, retained the same counsel, and actively participated in the litigation before the Workers'
Compensation Board and the court (cf. Griffin v Manning, 36 AD3d 530, 532 [1st Dept 2007]).

The court properly approved, nunc pro tunc, the previously agreed-upon settlements with the four entities. Petitioner demonstrated that the settlement amounts were reasonable in light of the limited resources and uncertain liability of the entities; that she was not dilatory, since she had no reason to seek court approval of the settlements until after the Workers' Compensation Board determined that respondent Con Edison's consent had not been obtained; and that Con [*2]Edison was not prejudiced (see Medina v Phillips, 88 AD3d 524, 525 [1st Dept 2011]).

We have considered Con Edison's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 28, 2013

CLERK