Monda v. City of New York

Appellate Division of the Supreme Court of New York

Monda v. City of New York

100 A.D.3d 414, 953 N.Y.S.2d 190

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 8, 2012

StatusPublished

This text of 100 A.D.3d 414 (Monda v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Monda v. City of New York, 100 A.D.3d 414, 953 N.Y.S.2d 190 (N.Y. Ct. App. 2012).

Pincite

Opinion

Order, Supreme Court, New York County (Barbara Jaffe, J.)r entered September 21, 2011, which granted plaintiffs motion to compel Elite Contractors Trust of NY (the workers’ compensation carrier for third-party defendant Northstar Contracting Corporation) to consent to the settlement of his claims in this action and to extinguish its workers’ compensation lien based upon its proportionate share of his attorneys’ fees, unanimously affirmed, without costs.

While plaintiff’s total disability was found to have been brought about 25% by a 1998 accident and 75% by the 2002 accident at issue in this action, there is no greater presumption than in any other total disability case that his disability will change in any material way in the future (see Burns v Varriale, 9 NY3d 207, 215 [2007]). Thus, the value of the future benefit to Elite from the settlement of plaintiffs claim — i.e., that Elite is relieved of its future obligation to make benefit payments to him — is no less “quantifiable] by actuarial or other reliable means” than the value of the future benefit resulting from the settlement of any other permanent total disability claim (see id.). Therefore, in assessing Elite’s proportionate share of plaintiff’s attorneys’ fees, the court properly considered the value of the future benefit payments that Elite will not have to pay to plaintiff (see Matter of Kelly v State Ins. Fund, 60 NY2d 131, 139 [1983]). Concur — Tom, J.E, Sweeny, Acosta, DeGrasse and Richter, JJ.

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Order, Supreme Court, New York County (Barbara Jaffe, J.)r entered September 21, 2011, which granted plaintiffs motion to compel Elite Contractors Trust of NY (the workers’ compensation carrier for third-party defendant Northstar Contracting Corporation) to consent to the settlement of his claims in this action and to extinguish its workers’ compensation lien based upon its proportionate share of his attorneys’ fees, unanimously affirmed, without costs.

While plaintiff’s total disability was found to have been brought about 25% by a 1998 accident and 75% by the 2002 accident at issue in this action, there is no greater presumption than in any other total disability case that his disability will change in any material way in the future (see Burns v Varriale, 9 NY3d 207, 215 [2007]). Thus, the value of the future benefit to Elite from the settlement of plaintiffs claim — i.e., that Elite is relieved of its future obligation to make benefit payments to him — is no less “quantifiable] by actuarial or other reliable means” than the value of the future benefit resulting from the settlement of any other permanent total disability claim (see id.). Therefore, in assessing Elite’s proportionate share of plaintiff’s attorneys’ fees, the court properly considered the value of the future benefit payments that Elite will not have to pay to plaintiff (see Matter of Kelly v State Ins. Fund, 60 NY2d 131, 139 [1983]). Concur — Tom, J.E, Sweeny, Acosta, DeGrasse and Richter, JJ.

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Bluebook (online)

100 A.D.3d 414, 953 N.Y.S.2d 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monda-v-city-of-new-york-nyappdiv-2012.

Opinion

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