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Battista v. Wu

Court Grants 34% Reduction of Insurer's Lien, But Denies Deeming Lien Null and Void

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The following papers numbered 1 to _2_ Read on this motion, MISCELLANEOUS noticed on November 20, 2017 and duly submitted on the Motion Calendar of November 20, 2017:PAPERS NUMBEREDNotice of Motion-Exhibits and Affidavits Annexed 1,2Answering Affidavit and Exhibits (Cross-Motion)

*1  Upon the foregoing papers, the plaintiff Richard Battista (“Plaintiff”) moves for an order (1) restoring this case to active status, (2) vacating and rendering null any and all potential liens by the non-party workers’ compensation insurer, American Zurich Insurance Company (“Zurich”) against the recovery from the third-party personal injury claim on behalf of Richard Battista as sanctions against Zurich; (3) setting the carrier’s equitable share of costs of litigation, including attorney’s fees, incurred by Plaintiff in securing repayment of Zurich in accordance with Workers’ Compensation Law §29 at 34 percent; (4) allowing for the immediate settlement of Plaintiff’s personal injury action; (5) setting the Zurich lien payback at $36,228.80, and (6) granting Plaintiff fees and costs, as well as imposing sanctions against non-party Zurich, pursuant to CPLR 8303-a for their frivolous conduct in necessitating this application, together with such other and further relief as the court deems just and proper. The motion is unopposed. BackgroundPlaintiff was allegedly injured in a motor vehicle accident. He thereafter received workers’ compensation benefits from Zurich, his workers’ compensation insurance carrier. This matter proceeded to trial. After the liability phase was completed, the defendants’ counsel offered $93,000 to settle the matter. Plaintiff asserts that this offer was acceptable in light of the fact that going forward with the damages phase of the trial would cost at least $10,000, and moreover, the defendants’ maintained $100,000/$300,000 in insurance coverage.

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