Wednesday, July 29, 2015

A settlement is approved nunc pro tunc.

Practice point:  The Appellate Division reversed the Court of Claims' denial of claimant's motion for an order approving the settlement of a claim nunc pro tunc under Workers' Compensation Law § 29(5).

The Appellate Division determined that the record does not show that the delay in obtaining approval was attributable solely to the fault or neglect of claimant; indeed, the record supports the conclusion that the carrier unwittingly lulled claimant into believing that it was willing to waive claimant's failure to obtain timely consent or court approval of the settlement. In fact, said the Appellate Division, the carrier made payments to claimant for eight years without objection, after it was made aware of the facts and circumstances surrounding the settlement and claimant's medical condition.

Moreover, respondent, the Liquidation Bureau, suffered no demonstrable prejudice as a result of any delay attributable to claimant.

Student note:  A judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even in cases where the approval is sought more than three months after the date of the settlement, provided that the petitioner 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 petitioner's fault or neglect; and (3) the carrier was not prejudiced by the delay.

Case:  Amacio v. State of New York, NY Slip Op 06298 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: The whistleblower statute and the underlying claims that gave rise to the complaint.