People v Special Funds Conservation Comm.
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People v Special Funds Conservation Comm. 2014 NY Slip Op 33788(U) December 16, 2014 Supreme Court, New York County Docket Number: 154920/2013 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/17/2013 1] INDEX NO. 154920/2013 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/17/2013 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART 59 DEBRA A. JAMES Justice ACE FIRE UNDERWRITERS INSURANCE CO. c/o SEDGWICK CMS, Petitioner, 154920/2013 Index No.: Motion Date: 11/01/2013 Motion Seq. No.:_~0~1~-- -vSPECIAL FUNDS CONSERVATION COMMITTEE, Respondent. Motion Cal. No.: _ _ _ __ The following papers, numbered 1 to 3 were read on this motion for judgment on petition. PAPERS NUMBERED Notice of Motion/Order to Show Cause -Affidavits -Exhibits Answering Affidavits - Exhibits 2 Replying Affidavits - Exhibits w 1 3 (.) I"' (!) ::> ..., 0 z 3: I- 0 a:: a:: u. u. Cross-Motion: D Yes 181 No Upon the foregoing papers, it is ordered that the motion shall be denied and the :::c c ..J w ..J petition shall be dismissed. 0 WW w lo:: a:: >o ..Ju. Respondent The Special Funds Compensation Committee ("The Committee") is correct that Workers Compensation Law §15(8) ..J contains no language that allows Ace Fire Underwriters Insurance 1- Company ("Insurance Company"), petitioner workers' compensation w a. w carrier, to obtain a compromise order from this Court of a ::> u. (.) "' a:: "' w "' settlement of a third-party action under which the Insurance Company seeks reimbursement from The Committee of workers' <( (.) z 0 j:: 0 ::!!: Check One: D FINAL DISPOSITION Check if appropriate: 181 NON-FINAL DISPOSITION D REFERENCE D DO NOT POST D SETTLE/SUBMIT ORDER/JUDG. [* 2] compensation benefits paid by the Insurance Company to an employee, plaintiff in that third-party action. Such silence contrasts with the provisions of Workers Compensation Law §29(5) that permit an employee or his/her dependents to obtain a compromise order from a justice of the court in which the thirdparty action is pending that approves a settlement of such third party action, timely or nunc pro tune, where the employee or dependents is/are entitled to receive workers' compensation benefits (Medina v Phillips, 88 AD3d 524 [1st Dept 2011]). Matter of Selective Ins Co of Am v State of NY Workers' Compensation Bd, 102 AD3d 72 (3d Dept 2012) makes clear that plaintiff insurance carrier must seek an administrative determination by the NYS Workers Compensation Board, whether nunc pro tune or otherwise, of its application for approval of its request for reimbursement from respondent Committee. See also Matter of Catapano v Jaw, Inc, 73 AD3d 1361 (3d Dept 2010). Matter of Catapano, supra and Matter of Selective Ins Co of Am, supra, appear to be in conflict as to whether such Workers' Compensation Board determination would be subject to direct appeal to the Appellate Division, Third Department pursuant to Workers' Compensation Law §23 (Matter of Lubrano v New York State Workers' Compensation Bd, 83 AD2d 841 [3d Dept 1981]) or to review of this Court pursuant to CPLR Article 78. In any event, this proceeding may not be maintained either because without a -2- [* 3] final and binding determination it is premature or because recourse to this Court pursuant to CPLR Article 78 is interdicted by the exclusive jurisdiction of the Appellate Division, Third Department pursuant to Workers' Compensation Law, § 23. Accordingly, it is ORDERED that petitioner's motion for an Order pursuant to Workers' Compensation Law§ 29(5) seeking· a Nunc Pro tune consent to settlement of Ramirez v Lexington Bakery Corp, New York County Supreme Court Index No. 111327/2008 is denied. This is the decision and order of the court. Dated: December 16, 2014 ENTER: J.S.C. -3-
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