In the Matter of Cheryl Jackson v. City of N.Y.

• Decision Date: 02 February 2010
• Citation: 70 A.D.3d 694,2010 N.Y. Slip Op. 00853,896 N.Y.S.2d 361,254 Ed. Law Rep. 389
• Parties: In the Matter of Cheryl JACKSON, respondent,v.CITY OF NEW YORK, et al., appellants.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 694

896 N.Y.S.2d 361

254 Ed. Law Rep. 389

2010 N.Y. Slip Op. 00853

In the Matter of Cheryl JACKSON, respondent,

v.CITY OF NEW YORK, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 2, 2010.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Ronald E. Sternberg of counsel), for appellants.Levin & Chetkof, LLP, Westbury, N.Y. (Howard A. Chetkof of counsel), for respondent.PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.

In a proceeding pursuant to Workers' Compensation Law § 29(5) to obtain judicial approval of a personal injury settlement nunc pro tunc, the City of New York, New York City Department of Education, and the Board of Education appeal from an order of the Supreme Court, Kings County (Rothenberg, J.), dated January 5, 2009, which granted the petition.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the petition to approve the settlement of the petitioner's personal injury action nunc pro tunc pursuant to Workers' Compensation Law § 29(5). Pursuant to that statute, an employee may settle a lawsuit arising out of the same incident as his or her Workers' Compensation claim for less than the amount of compensation he or she has received only if the employee has obtained written consent to the settlement from the compensation carrier, or, in the alternative, judicial approval within three months after the case has been settled ( see Matter of Johnson v. Buffalo & Erie County Private Indus. Council, 84 N.Y.2d 13, 19, 613 N.Y.S.2d 861, 636 N.E.2d 1394; Hargrove v. Becom Real, 287 A.D.2d 598, 732 N.Y.S.2d 234; Matter of Stiffen v. CNA Ins. Cos., 282 A.D.2d 991, 992, 723 N.Y.S.2d 569; Harosh v. Diaz, 253 A.D.2d 850, 851, 678 N.Y.S.2d 362). The failure to obtain either the insurance carrier's consent or court approval will bar the employee from receiving further Workers' Compensation benefits ( see Matter of Johnson v. Buffalo & Erie County Private Indus. Council, 84 N.Y.2d at 19, 613 N.Y.S.2d 861, 636 N.E.2d 1394; Matter of Stiffen v. CNA Ins. Cos., 282 A.D.2d at 992, 723 N.Y.S.2d 569). However, a judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even where the application for approval is sought more than three months after the date of settlement, provided that the employee can establish that (1) the amount of the settlement is reasonable, (2) the delay in applying for a judicial order of approval was not caused by the employee's fault or neglect, and (3) the insurance carrier was not prejudiced by the delay ( see Matter of Stiffen v. CNA Ins. Cos., 282 A.D.2d at 992, 723 N.Y.S.2d 569; Harosh v. Diaz, 253 A.D.2d at...