| Matter of Lautenschuetz v AP Greene Indus., Inc. |
| 2008 NY Slip Op 01480 [48 AD3d 948] |
| February 21, 2008 |
| Appellate Division, Third Department |
| In the Matter of Lee Anne Lautenschuetz, Individually and asAdministrator of the Estate of Gary E. Lautenschuetz, Deceased, Respondent, v APGreene Industries, Inc., et al., Defendants, and CNA Insurance Company,Appellant. |
—[*1] Weitz & Luzenberg, New York City (Stephen J. Riegel of counsel), for respondent.
Spain, J. Appeal from an order of the Supreme Court (Aulisi, J.), entered August 17, 2007 inClinton County, which granted petitioner's application pursuant to Workers' Compensation Law§ 29 (5) for judicial approval, nunc pro tunc, of a personal injury settlement.
In 2002, Gary E. Lautenschuetz (hereinafter decedent) commenced a personal injury actionseeking damages for injuries he sustained from the inhalation of asbestos. He also filed adisability claim for workers' compensation benefits and, when decedent died from mesotheliomain September 2003, petitioner, decedent's wife, filed a death claim. These claims involvednumerous work sites and multiple employers but—in September 2005—respondentCNA Insurance Company was identified as the liable workers' compensation carrier and awardswere eventually made. In addition, between December 2003 and April 2007, petitioner enteredinto [*2]approximately 15 settlements in the personal injuryaction.
In November 2005, CNA applied to the Workers' Compensation Board for review of thecompensation awards made to petitioner, challenging them on the ground that CNA's consentwas never obtained for the settlements in the personal injury action. By decision dated June 8,2006, the Board, finding insufficient evidence before it regarding the settlements in the plenaryaction, held the matter in abeyance and directed petitioner to produce further documentationrelated to the settlements, including "any [nunc pro tunc] orders previously or hereinafterobtained." By order to show cause dated April 19, 2007, petitioner applied for judicial approvalof the settlements nunc pro tunc from Supreme Court where the personal injury action waspending. Supreme Court granted the requested approval over the opposition of CNA. CNA nowappeals.[FN1]
Under Workers' Compensation Law § 29 (5), a petitioner may settle a third-partylawsuit arising out of the same accident as his or her workers' compensation claim withoutcompromising his or her right to workers' compensation benefits "provided that [he or she]obtains either the carrier's prior consent to the settlement or the approval of the court in which the. . . action is . . . pending, within three months after the case has beensettled" (Matter of Stiffen v CNA Ins. Cos., 282 AD2d 991, 992 [2001], lvdenied 97 NY2d 612 [2002]; see Matter of Johnson v Buffalo & Erie County PrivateIndus. Council, 84 NY2d 13, 19 [1994]). "The failure to obtain either the carrier's consent orcourt approval will bar the petitioner from further receipt of workers' compensation benefits"(Matter of Stiffen v CNA Ins. Cos., 282 AD2d at 992; see Workers'Compensation Law § 29 [5]).
Initially, we conclude that Supreme Court properly granted approval of the April 5, 2007settlement between petitioner and Amotex Trust, as petitioner's application was timely, havingbeen made that same month, and because CNA has provided no other basis to disturb SupremeCourt's discretionary determination that the settlement should be approved (see Workers'Compensation Law § 29 [5]).[FN2]We reach a different conclusion, however, with regard to the remaining settlements. Petitioner'snext most recent settlement was in July 2006, 10 months before the application for judicialapproval. Where, as here, more than three months [*3]haveelapsed after the date of settlement, a judicial order may be obtained nunc pro tunc approving thesettlement "provided that the petitioner can establish that (1) the amount of the settlement isreasonable, (2) the delay in applying for a judicial order of approval was not caused by thepetitioner's fault or neglect, and (3) the carrier was not prejudiced by the delay" (Matter ofStiffen v CNA Ins. Cos., 282 AD2d at 992; see Matter of Taylor v Continental Ins. Co., 9 AD3d 657, 658[2004]; Matter of Rifenburgh v James, 297 AD2d 901, 902 [2002]). The length of thedelay should also be considered in making this determination (see Matter of Taylor vContinental Ins. Co., 9 AD3d at 658; Matter of Rifenburgh v James, 297 AD2d at902).
No basis exists on this record to support the conclusion that petitioner's delay—theshortest of which is 10 months—in seeking judicial approval of the other settlementsshould be excused. Petitioner fails to offer any valid reason for the delay, emphasizing insteadefforts to obtain CNA's consent and offering two letters to that effect sent to CNA in Novemberand December 2006, each requesting that retroactive consent be provided. Further, petitionerclaims that uncertainty about the identity of the carrier prior to September 2005 when liabilitywas assessed against CNA prevented her from obtaining consent earlier. We note that as early asMay 2003, a carrier—although not CNA—was identified for the claims andpetitioner has provided no evidence that efforts were made to obtain the consent of any carrierprior to 2006. Moreover, " 'it is not a prerequisite for judicial approval that a party first seek, butfail to obtain, the carrier's consent' " (Matter of Bernthon v Utica Mut. Ins. Co., 279AD2d 728, 730 [2001], quoting Matter of Ikewood v Aetna Life & Cas. of Hartford, 108Misc 2d 943, 945 [1981]). Thus, petitioner's inability to gain the carrier's consent does not excuseher from timely seeking judicial approval.
In light of petitioner's failure to demonstrate that the delay resulted from anything other thanher own neglect, her application for nunc pro tunc approval of the July 2006 settlement, as wellas all settlements prior thereto, should be denied (see Matter of Taylor v Continental Ins.Co., 9 AD3d at 658; Matter of Rifenburgh v James, 297 AD2d at 902).
Cardona, P.J., Peters and Kane, JJ., concur. Ordered that the order is modified, on the law,without costs, by reversing so much thereof as granted nunc pro tunc approval of all thesettlements except the April 2007 settlement, and, as so modified, affirmed.
Footnote 1: Petitioner seeks dismissal of theappeal because CNA erroneously appealed from the decision of Supreme Court, rather than theorder entered thereon. Inasmuch as the decision is not materially different from the order and noprejudice has been shown, we exercise our discretion to deem the appeal to have been taken fromthe order (see CPLR 5520 [c]; Matter of General Motors Corp. [Sheikh], 41 AD3d 993, 994[2007]).
Footnote 2: CNA's argument regardingprocedural defects in petitioner's application, considered and rejected by Supreme Court, is notaddressed in its brief on appeal and thus is deemed abandoned (see Matter of Monet v Frazer, 40 AD3d1223, 1224 n [2007]).