Ace Fire Underwriters Insurance v. Special Funds Conservation Committee

Order, Supreme Court, New York County (Debra A. James, J.), entered December 17, 2013, which denied the petition for an order directing respondent to consent nunc pro tunc to settlement of the underlying personal injury action, unanimously affirmed, without costs. Workers’ Compensation Law § 29 (5) permits an employee to settle a lawsuit arising out of the same accident as gave rise to his workers’ compensation claim for less than the amount of the compensation he has received only if the employee has obtained written consent to the settlement from the carrier or, in the alternative, judicial approval. We find that, just as the employee is required to obtain the carrier’s consent prior to settlement, the carrier is required to obtain the Special Funds Conservation Committee’s consent prior to the settlement where it is entitled to reimbursement by the Committee pursuant to Workers’ Compensation Law § 15 (8) (d) (see Workers’ Compensation Law § 29 [5]; Matter of Catapano v Jow, Inc., 91 AD3d 1018 [3d Dept 2012], citing, inter alia, Employer: Brigotta Farmland, 2006 WL 1064007, 2006 NY Wrk Comp LEXIS 3343 [WCB No. 8021 3739, Apr. 18, 2006], lv denied 19 NY3d 809 [2012]). *547 Petitioner, having failed to obtain the Committee’s consent prior to the settlement of the underlying personal injury action, seeks a court order directing the Committee to consent nunc pro tunc. Since the Committee is an administrative agency governed by the Workers’ Compensation Law and subject to the authority of the Workers’ Compensation Board, we find that petitioner should seek a determination as to appropriate relief from the Board, which has already determined the injured claimant’s entitlement to certain payments and petitioner’s entitlement to reimbursements under Workers’ Compensation Law § 15 (8) (d) (see Matter of Selective Ins. Co. of Am. v State of N.Y. Workers’ Compensation Bd., 102 AD3d 72 [3d Dept 2012]). Concur— Tom, J.P., Renwick, Andrias, Richter and Gische, JJ.