Ace Fire Underwriters Insurance Company,, Appellant,v.Special Funds Conservation Committee, Respondent.BriefN.Y.October 19, 2016To Be Argued By: LISA LEVINE Time Requested: 15 Minutes APL-2015-00250 New York County Clerk’s Index No. 154920/13 Court of Appeals STATE OF NEW YORK ACE FIRE UNDERWRITERS INSURANCE COMPANY, c/o SEDGWICK CMS, Petitioner-Appellant, —against— SPECIAL FUNDS CONSERVATION COMMITTEE, Respondent-Respondent. REPLY BRIEF FOR PETITIONER-APPELLANT d LISA LEVINE STEWART, GREENBLATT, MANNING & BAEZ 6800 Jericho Turnpike, Suite 100W Syosset, New York 11791 Telephone: (516) 433-6677 Facsimile: (516) 433-4342 Attorneys for Petitioner-Appellant January 19, 2016 Table of Contents ARGUMENT CONCLUSION -1- Page # 1,2 3 Table of Authorities Empire State Transportation Workers' Compensation Trust v. Special Funds Conservation Committee, 125 A.D.3d, 967 (2nd Dept. 2015) Section 29(5) -11- Page # 1,2 1,2 ARGUMENT This Briefis submitted on behalf ofthe appellant, ACE Fire Underwriters Insurance Company c/o Sedgwick CMS ("appellant" and/or "ACE") in further support of its position that the First Department erred in holding that the ability to issue a nunc pro tunc order pursuant to Workers' Compensation Law Section 29(5) directing such consent is vested in the Workers' Compensation Board and in reply to the Brief ofthe respondent, Special Ftmds Conservation Committee ("respondent" and/or "The Fund"). Appellant respectfully reiterates each and every argument set forth in its appellant's Brief and notes that respondent has not set forth opposition to appellant's argument. Indeed, respondent concedes "there is no basis to deny appellant the availability ofthe remedy of Workers' Compensation Law Section 29(5) to seek judicial approval of settlement". It would go against basic principles of equity to not provide a method for a carrier to obtain judicial consent while affording such a remedy to claimant. The Second Department in Empire State -1- Transportation Workers' Compensation Trust v. Special Funds Conservation Committee, 125 A.D.3d, 967 (2nd Dept. 2015), decided around the same time that the underlying decision, agreed and determined that the carrier may seek a nunc pro tunc order from the Court. Id. 1 Therefore, for all ofthe reasons set forth by appellant, and in accordance with respondent's concurrence therewith, it is respectfully requested that this Court find that the discretion to issue an order, pursuant to Workers' Compensation Law Section 29(5) for nunc pro tunc consent to settlement as and between an employer and its Workers' Compensation carrier and that The Fund rests with the trial court. -2- I On remittur to the Supreme Court of Nassau COlmty, the Honorable Judge Roy Mahon issued a decision granting the Workers' Compensation carrier's petition for consent to settlement nunc pro tunc and stated "upon review of the respective submission and in particularly the decision and order of the Appellate Division, Second Department, dated February 25,2015, and petitioner's petition for an order pursuant to Workers' Compensation Law Section 29(5) seeking nunc pro tunc consent to settlement and in accordance with the decision and order of the Appellate Division, Second Department, is granted (see: Empire State Workers' Compensation Trust c/o Nemnan Claims Administrators, Inc'/Misc.3d1(S. Ct. Nassau County, December 3, 2015). CONCLUSION For the foregoing reasons, appellant respectfully submits that the decision of the Appellate Division, First Department be reversed and that this court find in accordance with the Second Department's Decision in Empire State Workers' Compensation Trust v. Special Funds Conservation Committee, supra, that an order directing consent to settlement nunc pro tunc as and between a Workers' Compensation carrier and the Special Funds Conservation Committee, is within the sound discretion ofthe trial court where the third party action is pending. Dated: Syosset, New York January 14, 2016 Yours, etc. STEWART, GREENBLATT, MANNING &BAEZ Attorneys for the Petitioner/Appellant Ace Fire Underwriters Insurance Company c/o Sedgwick CMS 6800 Jericho Turnpike, Suite 100W Syosset, N ew York 11791 Tel: 516-433-6677 Fax: 516-433-4342 By:_-LL--4L-d;lC---\,'--"-''--'--'' _____ _ -3- Cc: Special Funds Conservation Committee Respondent Two Tower Place Albany, New York 12203 Attn: Jill B Singer Tel; 518-438-3585 jsinger@specialfunds.org Rosado, Chechanover, Bayrasli & Dudley, LLP Attorneys at Law 31-00 47th Avenue 2nd Floor Long Island City, New York 11101 -4-