Alam v. Taxi Wheels to Lease, Inc.

57 A.D.3d 457, 868 N.Y.2d 750

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 2008
• Status: Published

Opinion

Contrary to the Supreme Court’s determination, nonparty Hereford Insurance Company (hereinafter Hereford) may assert a workers’ compensation lien against the plaintiffs proposed settlement with the defendants Hercules Tire and Rubber Company and Cooper Tire and Rubber Company, noncovered persons (see Insurance Law § 5104 [b]), in this action (see Workers’ Compensation Law § 29 [1]; Matter of McHenry v State Ins. Fund, 236 AD2d 89 [1997]; Stedman v City of New York, 107 AD2d 600 [1985]; cf. Aetna Cas. & Sur. Co. v Jackowe, 96 AD2d 37, 42 [1983]). Since Hereford may assert its lien, the plaintiff was required to comply with the provisions of Workers’ Compensation Law § 29 (5). The plaintiffs motion papers failed to include much of the information required by Workers’ Compensation Law § 29 (5) and it was supported only by a rather conclusory affidavit from the plaintiffs counsel. Accordingly, the court erred in granting the plaintiff’s motion to judicially approve the settlement and to extinguish Hereford’s lien (see Matter of Snyder v CNA Ins. Cos., 306 AD2d 677 [2003]). Spolzino, J.P., Angiolillo, Dickerson and Belen, JJ., concur. [See 16 Misc 3d 1110(A), 2007 NY Slip Op 51377(U).]