Zeng Xi Chen v. Spitz

77 A.D.3d 529, 909 N.Y.S.2d 432

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Paul Wooten, J.), entered October 2, 2009, which, inter alia, granted plaintiff’s motion for nunc pro tunc approval, pursuant to Workers’ Compensation Law § 29 (5), of the third-party settlement in the underlying personal injury action, unanimously affirmed, without costs.

The court reviewed in detail the history of this action and correctly found that the record demonstrates that nonparty appellant Lu Gang was deemed by a special referee to be plaintiffs employer at the time of the accident in which plaintiff was injured and that he had not procured workers’ compensation insurance for plaintiff. Thus, the Uninsured Employers’ Fund (UEF), acting as the workers’ compensation carrier pursuant to Workers’ Compensation Law § 26-a (2), had the right to and ultimately did consent to the $25,500 settlement in the underlying action (see Workers’ Compensation Law § 29 [5]).

While, as nonparty appellant points out, court approval of the settlement was not sought within three months after the settlement date (see id.), plaintiff established that the delay did not result from his fault or neglect and that the UEF was not prejudiced by it (see Merrill v Moultrie, 166 AD2d 392 [1990], lv denied 77 NY2d 804 [1991]).

We have considered nonparty appellant’s remaining arguments and find them unavailing. Concur—Sweeny, J.P., Freedman, Richter, Manzanet-Daniels and Román, JJ. [Prior Case History: 2009 NY Slip Op 32265(U).]