Fernandez v Toyota Lease Trust

Fernandez v Toyota Lease Trust 2017 NY Slip Op 08496 Decided on December 5, 2017 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 December 5, 2017
Richter, J.P., Manzanet-Daniels, Andrias, Kern, Singh, JJ.
5149N 24883/14E

[*1] Vincent D. Fernandez, Plaintiff-Respondent,

v

Toyota Lease Trust, et al., Defendants. The Hartford, Workers' Compensation Carrier, Nonparty Appellant.

Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Debra C. Salvi of counsel), for appellant.

Greenstein & Milbauer, LLP, New York (Bart Andrew Pittari of counsel), for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered February 8, 2017, which, purportedly, granted plaintiff's motion to equitably distribute the proceeds of a settlement between plaintiff and defendants by awarding plaintiff, his counsel and nonparty the Hartford $12,500 each, and amended order, same court and Justice, entered March 8, 2017, which addressed the Hartford's cross motion, made before the prior order, by which the Hartford sought to enforce its lien in the amount of $22,408.27, as a Workers' Compensation insurance carrier, and granted the cross motion only to the extent of recognizing the lien amount of $12,500, unanimously reversed, on the law, without costs, the order and amended order vacated, and the matter remanded for an equitable apportionment between plaintiff and the Hartford of the actual litigation costs, including attorney's fees, in the underlying action.

The court was without authority to arbitrarily divide the proposed settlement amount equally between plaintiff, plaintiff's counsel and the Hartford, or to strike, waive or reduce any portion of the Hartford's lien, beyond its share of the litigation expenses, including attorney's fees, so that plaintiff could recover more. The court was authorized only to equitably divide the actual and demonstrable litigation costs and fees between plaintiff and the Hartford, reflecting the carrier's total benefit (see Matter of Kelly v State Ins. Fund, 60 NY2d 131, 138 [1983]; Burns v Varriale, 9 NY3d 207, 213-214 [2007]; Hammer v Turner Constr. Corp., 39 AD3d 705 [2d Dept 2007]; Workers' Compensation Law § 29).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 5, 2017

CLERK