Claim of Vincent v. Geneva Pizza, Inc.

Appeal from a decision of the Workers’ Compensation Board, filed January 28, 1992, which ruled that claimant’s failure to seek the consent of his employer’s workers’ compensation insurance carrier to settlement of a third-party action barred further awards. There is support in the record for the finding of the Workers’ Compensation Board that the carrier’s challenge to the claim was based upon the theory that an employer/employee relationship does not exist. Such a challenge does not estop the carrier from raising the issue of the failure of claimant to obtain the consent of the carrier prior to the settlement of a third-party action as required by Workers’ Compensation Law § 29 (5) (see, Matter of Daly v Daly Constr. Corp., 136 AD2d 798, lv denied 72 NY2d 807). Given that claimant failed to timely seek such consent here, the Board’s finding that claimant is barred from further payments of compensation is affirmed. Weiss, P. J., Mikoll, Yesawich Jr. and Crew III, JJ., concur. Ordered that the decision is affirmed, without costs.