| Alam v Taxi Wheels to Lease, Inc. |
| 2008 NY Slip Op 09540 [57 AD3d 457] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Abdul Alam, Respondent, v Taxi Wheels to Lease, Inc., et al., Defendant. Hereford Insurance Company, Nonparty Appellant. |
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Kagan & Gertel, Brooklyn, N.Y. (Irving Gertel of counsel), for respondent.
In an action to recover damages for personal injuries, nonparty Hereford Insurance Company appeals from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated July 11, 2007, as granted the plaintiff's motion to approve a settlement, nunc pro tunc, and to extinguish its workers' compensation lien.
Ordered that on the Court's own motion, the notice of appeal is deemed to be a notice of appeal by the nonparty Hereford Insurance Company (see CPLR 2001; Matter of Tagliaferri v Weiler, 1 NY3d 605 [2004]; Wolff v Hubert, 200 App Div 124 [1922]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff's motion is denied.
Contrary to the Supreme Court's determination, nonparty Hereford Insurance Company (hereinafter Hereford) may assert a workers' compensation lien against the plaintiff's proposed settlement with the defendants Hercules Tire and Rubber Company and Cooper Tire and Rubber Company, noncovered persons (see Insurance Law § 5104 [b]), in this action (see Workers' Compensation Law § 29 [1]; Matter of McHenry v State Ins. Fund, 236 AD2d 89 [1997]; Stedman v City of New York, 107 AD2d 600 [1985]; cf. Aetna Cas. & Sur. Co. v Jackowe, 96 AD2d 37, 42 [1983]). Since Hereford may assert its lien, the plaintiff was required to comply with the provisions of Workers' Compensation Law § 29 (5). The plaintiff's motion papers failed to include much of the information required by Workers' Compensation Law § 29 (5) and it was supported only by a rather conclusory affidavit from the plaintiff's counsel. Accordingly, the court erred in granting the plaintiff's motion to judicially approve the settlement and to extinguish Hereford's lien (see Matter of Snyder v CNA Ins. Cos., 306 AD2d 677 [2003]). Spolzino, J.P., Angiolillo, Dickerson and Belen, JJ., concur. [See 16 Misc 3d 1110(A), 2007 NY Slip Op 51377(U).]