The following papers1 were read on the motion of plaintiffs for an order (1) approving and/or confirming, nunc pro tunc, the settlement of this action for the sum of $60,000.00, (2) that upon the payment of the $60,000.00 the defendant shall be released from all liability and claims and that all claims are dismissed in this action, (3) that “Workers['] Compensation” does not have a right to a credit having not properly reserved the same, (4) that even if such workers’ compensation credit has been reserved, the workers’ compensation claim for a future credit is extinguished, or (5) compromising the workers’ compensation claim for a future credit by reducing such future credit by apportioning workers’ compensation’s share of “legal expenses based on future benefits.”Order to Show Cause-Affidavit in Support of John Tangredi — Exhibits A-HAffirmation in Support of Yael Rappenport, M.D.Affirmation in Opposition of Ralph E. Magnetti, Esq. — Exhibits A-CReply Affidavit of John TangrediDECISION & ORDER Upon the foregoing papers, the motion is determined as follows: On May 1, 2012, plaintiff George Price was injured as the result of a motor vehicle accident during the course of his employment with the City of White Plains. Plaintiff applied for and received workers’ compensation benefits from his employer, the City of White Plains, which is self-insured. The benefits were managed by PMA Management Corporation (hereinafter “PMA”), the City of White Plains’ workers’ compensation administrator.George Price and his wife, Galit Price, also commenced the present personal injury action against defendant, whose motor vehicle collided with the van being driven by George Price. In the present action, George Price alleges he sustained cervical and lumbar injuries, including cervical radiculopathy, lumbar spinal stenosis and multiple disc bulges. As of November 13, 2017, George Price still had continuing pain in his neck and low back with tingling sensation and occasional numbness in his thighs, and is worse upon sitting for prolonged periods. Galit Price alleged a derivative claim for the loss of services.Multiple settlement conferences were held in this action. Defendant’s experts opined that George Price had cervical and lumbar strains superimposed on pre-existing arthritis in his cervical and lumbar spine and disc degeneration. Defendant’s experts did not find any evidence of a causal connection to the motor vehicle accident and opined that George Price was incapacitated from his work with the City of White Plains for less than 90 days.On January 4, 2018, counsel for the parties appeared before this Court and stipulated to a settlement on the record of $60,000.00. Counsel for plaintiffs further advised this Court that he was authorized by his clients to settle the action for that sum. At the time of settlement, George Price had received Workers’ Compensation benefits totaling $31,802.84 with a remaining $18,130.47 remaining of the $50,000.00 no-fault offset to a potential Workers’ Compensation lien (Insurance Law §5104[a]; Workers’ Compensation Law §29[1][a]).After the settlement of the action, an issue arose with respect to a potential credit against any future Workers’ Compensation benefits received by George Price based upon the settlement of the present personal injury action.Plaintiffs now move for an order approving and/or confirming the settlement and releasing defendant from all liability upon payment of the agreed upon settlement sum. Plaintiffs also seek an order determining that PMA and the City of White Plains failed to reserve a workers’ compensation future credit based on the settlement amount or, alternatively, extinguishing any right to a future credit that may exist or, alternatively, compromising the workers’ compensation claim for a future credit by reducing such future credit by apportioning workers’ compensation’s share of “legal expenses based on future benefits.”Pursuant to Workers’ Compensation Law §29(5), a claimant who has compromised a personal injury action (“third party action”) must obtain the employer’s written consent to the compromise of the personal injury action or judicial approval, nunc pro tunc, of the compromise in order to continue to receive future workers’ compensation benefits.In the present action, the evidence does not support plaintiffs’ contention that PMA consented to the settlement. Moreover, the letter by counsel for PMA and the City of White Plains which consented to the settlement was subject to a reservation of rights to future offset in the sum of the net recovery of George Price against, inter alia, future claims for workers’ compensation claims, which plaintiffs now challenge and seek to extinguish or reduce. Specifically, the letter provided that the consent to the settlement was subject to a reservation of “rights under section 29 of the Workers’ Compensation Law to offset [George Price's]…net recovery from the third-party settlement against any past, present or future claim for workers’ compensation medical and indemnity payments, and the offset right shall not be subject to any reduction for the proportionate share of litigation expenses…” (Plaintiffs’ Ex. G, Letter dated Jan. 12, 2018 by Ralph E. Magnetti, Esq. to John A. Tangredi, Esq.).That branch of the motion seeking judicial approval, nunc pro tunc, of the compromise of this action for $60,000.00, however, is granted. This court, in the exercise of its discretion determines that the settlement of this action for $60,000.00 for George Price’s claim is reasonable in light of his claimed injuries and the defendant’s contentions and evidence that the claimed cervical and lumbar injuries were pre-existing and degenerative in nature.Notably, there was no request in the Notice of Motion or Affirmation in Support with respect to an allocation of the settlement between the claim of George Price for his injuries and damages and Galit Price’s derivative claim.2 The settlement which was placed on the record in court is silent as to the allocation between the claims. Additionally, plaintiffs’ counsel in his affirmation in support refers to plaintiff George Price as “Plaintiff” throughout and asserts that “Plaintiff” accepted defendant’s $60,000.00 settlement offer3, leading this Court to conclude from the attorney affirmation in support that plaintiffs allocated the $60,000.00 settlement to George Price’s claim. In any event, plaintiffs failed to submit any evidence as to the loss of services. The attached pleadings failed to particularize the loss of services and plaintiffs failed to annex any deposition testimony or other evidence detailing the loss of services or George Price’s limitations in this regard.That branch of the motion seeking an order determining that PMA and the City of White Plains do not have a right to a future credit since there was no reservation of a right to a future credit is denied. The letter of counsel for PMA and the City of White Plains sufficiently and unambiguously reserved a right to a future credit.That branch of the motion seeking an order extinguishing any future credit to which PMA and the City of White Plains may be entitled is also denied. Plaintiffs’ contention that any future credit should be extinguished since the settlement was primarily for pain and suffering, not economic loss, such that it would be unfair to allow a workers’ compensation lien/offset against the settlement proceeds is without merit. Workers’ Compensation Law §29(4) provides for an offset against future workers’ compensation payments against proceeds of a third-party action (see Misko v. Gress, 4 AD3d 575 [3rd Dept 2004]), including motor vehicle actions commenced under Insurance Law §5104(a) (Buck v. Graphic Arts Mut. Ins. Co., 19 AD3d 966 [3d Dept 2005]).The final branch of the motion seeking an order compromising the workers’ compensation claim for a future credit by reducing such future credit by apportioning workers’ compensation’s share of “legal expenses based on future benefits” is granted to the extent set forth below.Although counsel for PMA and the City of White Plains in the letter granting conditional consent to the settlement of the present action asserted that “the offset right shall not be subject to any reduction for the proportionate share of litigation expenses” (Plaintiffs’ Ex. G, Letter dated Jan. 12, 2018), PMA and the City of White Plains has now agreed to a reduction of the offset by their proportionate share of litigation expenses (Affm in Opp at
