Comm'rs of the State Ins. Fund v. Augusto Garcia, Scalzi & Nofi PLLC

• Decision Date: 06 August 2015
• Docket Number: 003-MG
• Citation: 49 Misc.3d 875,2015 N.Y. Slip Op. 25267,14 N.Y.S.3d 683
• Parties: COMMISSIONERS OF THE STATE INSURANCE FUND, Plaintiff, v. Augusto GARCIA, Scalzi & Nofi PLLC, Vincent J. Nofi and Scalzi & Nofi, Defendant.
• Court: New York Supreme Court

49 Misc.3d 875
14 N.Y.S.3d 683
2015 N.Y. Slip Op. 25267

COMMISSIONERS OF THE STATE INSURANCE FUND, Plaintiff
v.
Augusto GARCIA, Scalzi & Nofi PLLC, Vincent J. Nofi and Scalzi & Nofi, Defendant.

003-MG

Supreme Court, Suffolk County, New York.

Aug. 6, 2015.

14 N.Y.S.3d 684

William O'Brien, Esq. by Peter Lampasona, Esq., Melville, for Plaintiffs.

Scalzi & Nofi, Esqs., Scalzi & Nofi, PLLC, Vincent J. Nofi, & Scalzi & Nofi by Vincent J. Nofi, Esq., Hicksville, for Defendants.

Augusto Garcia, Westbury, pro se.

Opinion

JAMES C. HUDSON, J.

Upon the following papers numbered 1–19 read on this Motion/Order to Show Cause for Default Judgment (003) and to Preclude (004); Notice of Motion/ Order to Show Causes and supporting papers (003) 1–14; Answering Affidavits and supporting papers (003) 15–17; Motion/Order to Show Cause to Preclude (004); Notice of Motion/ Order to Show Cause and supporting papers (004); 16–19 Notice of Cross Motion and supporting papers 0; Answering Affidavits and supporting papers (004) 17–19; Replying Affidavits and supporting papers 0; Other; (and after hearing counsel in support and opposed to the motion),

49 Misc.3d 876

it is

ORDERED, that Plaintiffs' motion for a default judgment against Defendant Augusto Garcia is granted under the circumstances presented (CPLR § 3215 ). It is further

ORDERED, that Plaintiffs' motion for summary judgment against Defendants Scalzi & Nofi, PLLC, Vincent J. Nofi, is granted to the extent provided herein (CPLR § 3212 ). It is further

ORDERED, that the Court directs that judgment be entered in favor of Plaintiffs and against Defendants Augusto Garcia Scalzi & Nofi, PLLC, Vincent J. Nofi on the issue of liability. It is further

ORDERED, that the parties are directed to appear before the Court on Wednesday, September30, 2015 at 10:00am in the forenoon at One Court Street, Riverhead, N.Y., Part XL, for purposes of a non-jury trial to ascertain the amount of Plaintiffs' lien. It is further

ORDERED, that the motion to preclude brought by Defendants is denied as moot.

Plaintiffs, Commissioners of the New York State Insurance Fund (hereinafter referred to as “NYSIF” or “The Fund”), make the instant motion (Seq.No.003) for a default judgment against Defendant, Augusto Garcia, and for summary judgment against Defendants, Scalzi & Nofi, PLLC and Vincent J. Nofi, Esq. The Defendants, Scalzi & Nofi, PLLC and Mr. Nofi have moved (Seq.# 004) for an order of preclusion against Plaintiffs on the basis of failing to provide discovery. The Court will consider both motions in this decision.

14 N.Y.S.3d 685

The case at bar arises from an incident in which Defendant, Augusto Garcia, was injured at his place of employment on April 2, 2006. Mr. Garcia filed a claim with the Workers' Compensation Board which resulted in a hearing and subsequent award directing the Fund to pay him a lump sum (less monies already paid) of $4,740.00 as well as continued payments of $300.00 per week. Additionally, the Board directed payment of $560.00 to Mr. Garcia's counsel, the firm of Terry Katz & Associates (Plaintiffs' Exhibit “A”). Plaintiffs have submitted an affidavit from a representative of the NYSIF which indicates that the Fund made payments to Mr. Garcia in the amounts of $120,620.00 for wages and $38,309.28 for medical/travel expenses, totaling $158,929.28 (Affidavit of Deborah Agudelo dated February 2, 2015).

49 Misc.3d 877

Workers Compensation Law § 29[1] allows an injured person to seek compensation for injuries by filing a claim with the Board against an employer, and further allows the injured party to commence a lawsuit seeking an additional recovery from a non-employer. Given this statutory authority, Mr. Garcia also commenced a lawsuit to recover for his injuries against ML Best Construction and All Seasons Commercial Systems, Inc., sounding in negligence and strict liability under NYS Labor Law §§ 200 ; 240(1); and 241(6). Defendant Scalzi & Nofi, PLLC was retained as counsel by Mr. Garcia in this other case and ultimately secured a settlement of his claims in the amount of $425,000.00. This settlement agreement, dated September 5, 2013 and purporting to be signed by counsel, bears the following language: “Subject to formal approval of Worker's Compensation Carrier” (Plaintiffs' Exhibit “C”). Thereafter, the NYSIF contends a letter (dated September 12, 2013) was sent to the Defendant law firm informing them that although their lien totaled $160,565.09, the fund would accept $100,000.00 in full satisfaction thereof (Plaintiffs' Exhibit “D”). Plaintiffs have also submitted proof that a check in the amount of $425,000.00 was issued to Defendants. An examination of this check (Plaintiffs' Exhibit “E”) indicates that it was endorsed by “Augusto Garcia” and “Scalzi and Nofi PLLC.” The cancellation stamps on the back of the check indicate it was negotiated.

Based on these facts, Plaintiffs have moved for a default judgment against Mr. Garcia and for summary judgment against the Defendant law firm and counsel.

Initially, the Court grants Plaintiffs' unopposed motion for a default judgment against Defendant Augusto Garcia in an amount to be determined by the Court. When a respondent fails to oppose matters advanced on a motion, the facts alleged in the moving papers may be deemed admitted by the Court (Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667, 369 N.Y.S.2d 667, 330 N.E.2d 624 [1975] ; Madeline D'Anthony Enter., Inc. V. Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept.2012] ; Argent Mtge. Co., LLC v. Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591 [2nd Dept.2010] ).

We turn now to the question of summary judgment as to the remaining Defendants. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986], citing, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Zuckerman

49 Misc.3d 878

v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ;

14 N.Y.S.3d 686

Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 ). Upon review of the moving and responding papers, the Court finds that, with the exception noted below, Plaintiffs have established their entitlement to summary judgment. The gravamen of Defendants' opposition centers on the viability and amount of the lien and the question of an attorney having to personally answer for the enforcement of a lien in a case of this sort. These questions will be discussed ad seriatim.

In addition to allowing an injured employee to proceed against a third-party tortfeasor, Workers' Compensation Law § 29(1) contains a provision for the distribution of any award made in a lawsuit, specifically:

“In such case, the state insurance fund, if compensation be payable therefrom, and otherwise the person, association, corporation or insurance carrier

...