Borrowman v. Insurance Co. of North America

198 A.D.2d 891, 604 N.Y.S.2d 446, 1993 N.Y. App. Div. LEXIS 11541

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1993
• Status: Published

Opinion

—Order unanimously affirmed with costs. Memorandum: We reject respondent’s contention that Supreme Court lacked jurisdiction to entertain petitioners’ application for approval, nunc pro tunc, of petitioners’ settlement of a third-party action pursuant to Workers’ Compensation Law § 29 (5). The Court of Common Pleas of Erie County, Pennsylvania, in which the third-party action was pending, declined to exercise jurisdiction on the ground that New York provided a more appropriate forum to resolve the matter (cf., Matter of Daly v Daly Constr. Corp., 136 AD2d 798, 800, lv denied 72 NY2d 807).

The court properly exercised its discretion in approving the settlement. Respondent was not prejudiced by petitioners’ delay in seeking judicial approval and the third-party action was settled for the limit of defendant’s liability policy (see, Merrill v Moultrie, 166 AD2d 392, lv denied 77 NY2d 804; Matter of Anzalone v Traveler’s Ins. Co., 150 AD2d 567). (Appeal from Order of Supreme Court, Onondaga County, Nicholson, J. — Workers’ Compensation Settlement.) Present— Callahan, J. P., Green, Balio, Fallon and Boehm, JJ.