In Miszko v. Gress, 4 AD3d 575, 772 N.Y.S.2d 723, [3d Dept 2004] the plaintiff was injured in the course of his employment as a state trooper.
He received workers compensation benefits from the New York State Insurance Fund (the Fund).
In addition to his workers' compensation claims the plaintiff commenced an action for personal injuries that included a derivative claim for his wife's loss of services.
The Fund had a statutory lien on any recovery in the plaintiff's case and required its prior consent before settling.
Through negotiations the plaintiff's lawyers arranged for a settlement of $ 25,000 and the Fund would receive $ 14,866.67.
But the plaintiff refused to endorse the settlement check.
Subsequent motion practice led to the Supreme Court to issue an order allocating 30% of the total settlement to the plaintiff's wife's derivative claim.
The settlement monies allocated to the wife in her derivative claim is not subject to the Fund's lien and thereby reduced the Fund's share to $ 10,480.83, a difference of $ 4,385.84.
As the Fund had a statutory lien and any settlement required consent it appealed the Supreme Court's allocation of settlement monies.
In reversing the Supreme Court's findings the Appellate Division, Third Department held that the payment of 30% of the total net recovery, after disbursements and counsel fees, to a wife's derivative claim was excessive and reduced the recovery to 10%.
In reducing the settlement amount the court considered the extent of the plaintiff's injuries, his continued disability and the proof submitted by the wife in support of her claim.