Baiano v. Squires
| Decision Date | 03 September 1985 |
| Parties | Mayrose J. BAIANO, et al., Respondents, v. Grace SQUIRES, et al., Defendants, Liberty Mutual Insurance Company, Appellant. |
| Court | New York Supreme Court — Appellate Division |
A. Paul Goldblum, Brooklyn (Debra B. DiCicco, New York City, of counsel), for appellant.
Warren E. Sheldrake, Tarrytown (Emanuel Thebner, White Plains, of counsel), for respondents.
Before LAZER, J.P., and THOMPSON, RUBIN and KUNZEMAN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to Workers' Compensation Law § 29(5) to obtain judicial approval of a previously agreed to compromise and settlement of a personal injury action, the Liberty Mutual Insurance Company appeals from so much of an order of the Supreme Court, Westchester County, entered May 22, 1984, as, upon its motion to open its default in opposing the application and for reconsideration, adhered to a previous order dated January 23, 1984 granting petitioners' application for judicial approval of the compromise and settlement.
Order reversed insofar as appealed from, without costs or disbursements, order dated January 23, 1984 vacated and petitioners' application denied. The personal injury action shall be restored to the head of the trial day calendar of the Supreme Court, Westchester County.
In December 1978, petitioner Mayrose J. Baiano was injured in an automobile collision while in the course of her employment for the County of Westchester. As a result of the accident, she was unable to work full time for approximately six weeks. In mid-February 1979, she returned to her position on a part-time basis, but she continued to receive periodic physical therapy treatments. Following her accident, Mayrose Baiano began to receive payments for lost wages and medical expenses from Liberty Mutual Insurance Company (hereinaft Liberty Mutual), the Workers' Compensation carrier for the County of Westchester.
The injured petitioner and her husband also instituted a personal injury action against the owner and driver of the other vehicle, Grace Squires and Franklin Squires. On or about March 12, 1979, Liberty Mutual sent to Franklin Squires a notice of lien upon any settlement, judgment or other recovery received by Mayrose Baiano which attached under Workers' Compensation Law § 29(1). On May 19, 1983, following jury selection for the personal injury action, petitioners accepted a settlement offer of $43,500 from the Squires' representative. Liberty Mutual was not then informed of the settlement. In August 1983, Mayrose Baiano was notified that Liberty Mutual was discontinuing payment of her Workers' Compensation benefits because her personal injury action had been settled "without carrier consent". At that time, Liberty Mutual had reimbursed Mayrose Baiano $3,747 for lost wages and $5,482.04 for medical expenses. On or about September 26, 1983, petitioners moved at Trial Term for an order authorizing them to compromise their personal injury action. By order dated December 9, 1983, Trial Term dismissed petitioners' motion as untimely and improperly served since the case had previously been marked settled and was no longer on the calendar. Trial Term advised petitioners to renew their application at Special Term.
On December 20, 1983, petitioners obtained an order requiring the defendants, rather than Liberty Mutual, to show cause at Special Term why the court should not issue an order authorizing compromise of the personal injury action....
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