The Second Department determined Supreme Court erred when it held that it not have the power to provide judicial consent to a third-party settlement nunc pro tunc. The Second Department explained the requirements for consent to a third-party settlement where the Special Fund will reimburse the carrier:
The Workers’ Compensation Board has previously determined that where, as here, a carrier failed to timely obtain consent of the Special Funds Conservation Committee to settlement of a personal injury action, the carrier may still obtain reimbursement from the Special Disability Fund, but only if it obtains a nunc pro tunc order from a court directing the Special Funds Conservation Committee to consent … . A request to compel nunc pro tunc consent to a settlement is addressed to the discretion of the Supreme Court … . In seeking a discretionary nunc pro tunc order from a court directing consent to settlement, a petitioner must first establish that (1) the delay in seeking judicial relief was not caused by the petitioner’s fault or neglect; (2) the amount of the settlement was reasonable; and (3) the party whose consent is sought was not prejudiced by the delay … .
Here, because the Supreme Court erroneously believed that it had no power to issue a nunc pro tunc order directing the Special Funds Conservation Committee to consent to settlement, it did not exercise its discretion. Accordingly, we remit the matter to the Supreme Court … . Matter of Empire State Transp Workers’ Compensation Trust v Special Funds Conservation Comm, 2015 NY Slip Op 01635, 2nd Dept 2-15-15