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Late Motion for Judicial Approval of a Settlement Properly Denied—Delay In Seeking Approval Was Due to Plaintiff’s Own Fault or Neglect

The Second Department determined plaintiff's late motion for judicial approval of a settlement was properly denied because the delay in making the motion was due to the plaintiff's own fault or neglect:

“Pursuant to Workers' Compensation Law § 29(5), an employee who is the recipient of workers' compensation benefits may compromise a third-party claim arising out of the same accident without prejudice to the continued payment of benefits upon obtaining either the written consent of the compensation carrier before the compromise, or judicial approval of the compromise within three months after it” … . “However, a judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even where the application for approval is sought more than three months after the date of settlement, provided that the employee can establish that (1) the amount of the settlement is reasonable, (2) the delay in applying for a judicial order of approval was not caused by the employee's fault or neglect, and (3) the insurance carrier was not prejudiced by the delay” … .

A proceeding for approval, nunc pro tunc, of the settlement of a third-party action pursuant to Workers' Compensation Law § 29(5) is directed to the discretion of the court … . Here, the delay in seeking judicial approval was due to the plaintiff's own fault or neglect. Under these circumstances, the Supreme Court providently exercised its discretion in denying the plaintiff's motion … . Lobban v Brown, 2015 NY Slip Op 00850, 2nd Dept 2-4-15


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