Beityakov v 5377 Kings Hwy. Partners, LP

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Beityakov v 5377 Kings Hwy. Partners, LP 2017 NY Slip Op 32584(U) November 27, 2017 Supreme Court, Kings County Docket Number: 501053/15 Judge: Ellen M. Spodek Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] .At a.n.IASTerm., Pal't 63 ofthe S\1.pi:eme Court of the State of New Yotk; heid in and for the County of Kings, at the Coiirthouse, ,.at Civic Center, Brooklyn, New York, on the27faly ofNovember, 2017.. P'RESENT: HON. E.LLEN M.. SPODEK, Justice. - - - _ .. _ .:. - - w M ·- - - - - - - - - -·- - -· - - - - - - - - - -X $ARAH'{3EITYAKOV, DECISION AND ORDER Plaintiff, Index #501053115 - against - ·Mot, Seq. #2 5377 KINGS H;rGHWAY PARTNERS, LP, l)efenda,nt. ---------.-----~------~-------w---X The' following e-filed papers read he1~ein: NYSCEF# Orde.r to ShowCaµ§ea11d· Supporting Affitinatici11s. (Affidavits) Annexed __~-~·~--~~~--~~ Affirnrntion in Oppositio;1 a11d Exhibit!'! Annexe<;!._ _ _ _ _~ Reply Affirmation._____________~---- In this acttbn. to recovet dainages for personal injuries, plaintiff Sarah Beltyakov (plaintiff) movi.;:$, pursuant to Workers' Compensation Law (WCL) § 29 (5), for judicial approval oft.he compromise .of thiS action n:1.1nc pro tune. Republic Franklin Insurance Cofupan:y; c/o Utica Nadoim1 Insur~nce Group, the workers• conipen:sation daffier for. pl'airitiff'.s employer' (the catrfer), opposes the motion. Background On February 5, 2013, plaili.ti:ff tripped a:nd fell at her place of empfoyment, sustaining several long-lasting ihj11rie$. Her claim fol' workers' compt~nsatioh ben({fits [* 2] wa& gra;nted upon a finding tbat sh~ sostained those injuti\::$ durih~ the cotirse of he1· ~mployment. Plaintiff thereafter con1metrced this action against the premises owner, defendant 53 77 Kings Highway Partners, LLC (.defendant)i seeking to recover for the. same· injuries, . . ' Approximately ;22 months after she. commenced this action, she s.ettled it with defondan{ for the ~um .of fifty sixthm~sand dollar~ ($56,000); with the net recovery fo he1~ of thhi:y- sb{ thousand. twenty four dollars {$36;024) .. The carrief" did not consentto the settletnent. At the. tiine ·of the settlementi the c:arrieris out.standing workers'· compensation ii en was thirty-seven thousand three hundred eighty one ddllars and nine cents ($3·7,381.09), subject to a dh;ective from the workers' compensation board to continue p~yments for . plaintiff's ongoing ni.edical care and treatment. Elev~m months· after entedng into the settlement, plaintiff moved, pursuant to WCL 29 (5); for juci!cial approval of the ·compromise ofthis action nunc pro tune. Pu~·S-C1antto WCL 29 (5\ "an employee may .s~ttle a lawsuit a,tisibg out.ofthe same incident as ·, . . her Workers' Cmnpensatfon :Claim for· less than the ainount ·of onmpensation · . . . she· has rnceived only if the em1:iloyee has obtained either written con~erit fo.the·s~ttlemeritfrom the con1pensaJion carrier, or judieial approval within three .months .after the. case hasheen $ettled'' (Russo vNew Han1pshb~e Ins. Cb.., 133. AD3d 860, 861 [2d Dept 2015]). "The failure to obtain either tlw insutance carrier's consent or cm,rt approval will .bar the employee from receiving further Workers' Cbmpensation benefits''· 2 [* 3] (Matter of Williams v Orange & Sullivan ExcavatingCo;·p., 114. AD3d 802, 8.03 [2d Dept 2014]). '-'However, a judiqial order m;;iy be qb.taineq nimc. pro tung approving a previously agteed-qpon settlet1font, pven where the application foi· approv~l is sotight rnote than tlm;!e rµonth:~ :after the date of settlement,. provided that the employee can establish that (l) tho amount of the settlement is reasonable; (2) the delay in apply.frig for a judicial. order of approval was not. c.aused by the erpployee's fault or nc:glect, and (3) the in·surance carrier was t10t ·prejudiced by the delay" (Matter of Williams, 114 AD3d at. 803). Considering· (1) that the eleve1H11onth delay in seek1ng judicial approval was due to· plaintiff) .own fault or neglect, (2) the lack of any reasonable explanation for the . . delay,. (3) tll<:!· lacl( of any explanation>. by settl~nient amount is way of a 1n¢dical affidavit, as to why the: tea::;'onable; at1d (4:) the prejudice to the i~ghts of the carrier resulting from the s·ettlement, the Court denies plaintiff's 1i1otion (:see Lobban v Brown~ 125 ADJd 61?,. 614 [2d D.ept 2015J; Pwtctdo v Marlo's Bakery, 17 ADJd 5·27, 528 [2d Dept 2005]; S~nghv Ins, Ross, 1;2 AD3d498, 499 [2d Dept 2004]; Matter ofHermanGf! v Fireman's Fund Co., 265 AD2d 32a [2d Dept 1999]; Htkosh v Di4z, 253 AD2d 850, 852 [2d l99Sj). Plaintiff~s .claim that she was unaware oft\ workers' c.ompensation case D.¢pt at the time. that this case was. settled is unavailing. Plaintiff herself retained the attorneys. for 1,ioth this lawsuit and for the workets compens'l,tion Ga$e! lgn.oq:mce is not an excuse. . PlEiintfff herself kn~w that she had a woi·ker's co111pensation ¢ase at the same time a:s. this 3 [* 4] l~wsuit, was teceiving payments, and neglected to tell her attotneys fot this Iawsi1it about the worker's compensation case. She cannot now excuse that '~!1eglect" to get around the f;ict that the worker)s compensation carrier did not consent to the settlememt of this lawsuit and is now attetnpting to get judicial .approval nunc pro tune. Plaintiff Gleaily fail~: to satisfy her burderf of proving that the delay in applying for the. judic.iaJ ord~.r .of approval was· not caused by her fault or neglect. Co11cli1sion Accordingly, it is ORDERED thatplafotiff'smotion is denied. This constitutes the Decision and Ord.er of the Court. ENTER, 4

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