Vazquez v Rodriguez-Herrera

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Vazquez v Rodriguez-Herrera 2017 NY Slip Op 32188(U) October 16, 2017 Supreme Court, New York County Docket Number: 164569/2012 Judge: Arlene P. Bluth 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 10/17/2017 09:53 AM 1] NYSCEF DOC. NO. 58 INDEX NO. 154569/2012 RECEIVED NYSCEF: 10/17/2017 SUPREME COURT OF THE STA TE OF NEW YORK COUNTY OF NEW YORK: PART 32 ------------------------------------------------------------------------ NANCY VAZQUEZ )( Plaintiff, Index No. 164569/2012 Motion Seq: 004 & 005 DECISION & ORDER -againstVANESSA RODRIGUEZ-HERRERA and ASHLEY N. BODDEN, HO~ARLENE~BLUTH Defendants. ------------------------------------------------------------------------ )( Motion Sequence Numbers 004 and 005 are consolidated for disposition. The motion (Mot Seq 004) to reargue is granted, and upon reargument, the motion is denied. The motion to compel disclosure (Mot Seq 005) is denied as moot. Background This motion arises out of this disposed motor-vehicle accident case which settled in December 2014 via a stipulation of discontinuance with prejudice (NYSCEF Doc. No. 23). Plaintiff was injured while working "on the job" and, among other injuries, underwent left shoulder surgery. Two years before this accident case settled, the Workers' Compensation Board ("WCB") had found, on September 12, 2012, that plaintiff had a temporary total disability and awarded her payments for three weeks, the time period from April 30, 2012 through May 21, 2012 (NYSCEF Doc. No. 31 ). Almost two years afier this car accident case settled, WCB issued another decision, filed September 15, 2016, in which it found that plaintiff had a permanent partial disability (NYSCEF Doc. No. 33). Page I of 4 2 of 5 [*FILED: NEW YORK COUNTY CLERK 10/17/2017 09:53 AM 2] NYSCEF DOC. NO. 58 INDEX NO. 154569/2012 RECEIVED NYSCEF: 10/17/2017 Plaintiff brought an unopposed motion (motion sequence 003) to resolve post-settlement issues with the WCB. This Court denied that motion as moot because the accident case was disposed; that was in error. Therefore, the motion to reargue is granted and the now the Court will consider the merits of plaintiffs (now opposed) motion. Plaintiff insists that a Court of Appeals case, Burns v Varriale (9 NY3d 207, 849 NYS2d I [2007]), requires the New York State Insurance Fund ("NYSIF") to periodically pay an equitable share of the future costs of litigation incurred by plaintiff as she attempts to collect future benefits. Plaintiff contends that NYSIF has consented to the settlement of this accident case (i.e. with the drivers of the car that crashed into vehicle in which plaintiff was a passenger) for $85,000 and that NYSIF has paid $2,149.99 in workers' compensation benefits and $14,830.99 in medical benefits on behalf of plaintiff. Plaintiff insists that NYSIF has offered no additional compensation sufficient to relieve NYSIF of its obligation to compensate plaintiff for. future costs of litigation, including attorney's fees associated with seeking workers' compensation benefits. Plaintiff requests that this Court approve the settlement of this action and compel NYSIF to pay attorney's fees going forward on plaintiffs future worker's comp earnings. In opposition, NYSIF claims that Burns does not apply to future earnings and, in any event, plaintiff was not entitled to continuing compensation benefits at the time ofsettlement of the accident case. NYSIF claims that plaintiff did not receive a schedule award until almost 2 years after she settled this lawsuit and she had not received any kind of permanent award (nor was she entitled to continuing compensation benefits) at the time of settling this accident case because she was working. NYSIF contends that Burns does not permit plaintiff to come back at any time years after a case has settled to seek apportionment of fees. Page 2 of 4 3 of 5 [*FILED: NEW YORK COUNTY CLERK 10/17/2017 09:53 AM 3] NYSCEF DOC. NO. 58 INDEX NO. 154569/2012 RECEIVED NYSCEF: 10/17/2017 Discussion NYSIF gave its consent on November 23, 2014 for plaintiff to settle this matter for $85,000 (see NYSCEF Doc. No. 32). That letter clearly states that Burns does not apply and that "[t]here will be no further application for an apportionment of attorney's fees and disbursements under Section 29( 1) of the Workers' Compensation Law" (id.). Although plaintiff now claims that it did not agree to the language in this letter waiving plaintiffs purported rights under Burns, plaintiff clearly decided to settle this case (see NYSCEF Doc. No. 23) after knowing NYSIF's position. Plaintiff could have refused to settle based on NYSIF's letter; she did not. After receiving NYSIF's consent letter, plaintiff could have moved for declaratory relief on the basis that the inclusion of the Burns waiver language is impermissible; she did not. Instead, only after a settlement was reached, does plaintiff seek to require NYSIF to pay future litigation costs. NYSIF's consent letter could not be more clear- it states that Burns does not apply to its consent of plaintiffs settlement in the instant action. Plaintiff knew NYSIF' s position in November 2014, before it chose to finalize the settlement in December 2014. Plaintiff cannot now seek to bind NYSIF to terms not included in its consent letter and the Court will not force NYSIF to make payments for something it expressly said it was not going pay. Had plaintiff challenged NYSIF's insistence on plaintiff waiving her right to Burns payments before the settlement was finalized, the Court would have considered whether Burns and its progeny permit the inclusion ofNYSIF's waiver language. But that motion is not before this Court. Instead, this Court's decision is limited to the circumstances present in this case: where a plaintiff obtained a consent letter from NYSIF stating that NYSIF was not going to make ongoing litigation cost payments and that plaintiff still Page 3 of 4 4 of 5 [*FILED: NEW YORK COUNTY CLERK 10/17/2017 09:53 AM 4] NYSCEF DOC. NO. 58 INDEX NO. 154569/2012 RECEIVED NYSCEF: 10/17/2017 decided to enter into a stipulation of discontinuance with prejudice in the accident case anyway. Further, this is a case where, at the time of the consent Jetter and settlement of the accident case there was no finding of partial permanent disability prior to the settlement and the plaintiff continued working after the accident (except for some time off for her surgery). Only well after (almost two years after) settlement of the accident case was plaintiff found to be permanently partially disabled. All of these factors compel this Court to deny plaintiffs motion. The Court also recognizes that the most recent WCB decision found "that there was no settlement of the third party action (carrier had a lien, but there was never consent granted)" (NYSCEF Doc. No. 33). But plaintiff has not asked this Court to vacate the stipulation of discontinuance filed in this action- instead, plaintiff wants the Court to enforce the settlement as plaintiff desires rather than what actually occurred. In reality, plaintiff and NYSIF disagreed about the inclusion of Burns language, no consensus was reached and plaintiff settled the case in spite of this disagreement. The Court will not require NYSIF to follow terms it never agreed to. Accordingly, it is hereby ORDERED that plaintiffs motion (Mot Seq 004) for reargument is granted, and upon reargument the motion is denied; and it is further ORDERED that NYSIF's motion (Mot Seq 005) is denied as moot. This is the Decision and Order of the Court. Dated: October 16, 2017 New York, New York ARLENEP.BL HON. ARLENE P. BLUTH Page 4 of 4 5 of 5

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