                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     520025
________________________________

RICHARD RONKESE,
                    Respondent-
                    Appellant,
     v                                      MEMORANDUM AND ORDER

TILCON NEW YORK, INC.,
                    Appellant-
                    Respondent,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   April 29, 2015

Before:   Peters, P.J., Garry, Rose and Devine, JJ.

                             __________


      Freehill Hogan & Mahar, LLP, New York City (John F.
Karpousis of counsel), for appellant-respondent.

     Melley Platina, PLLC, Rhinebeck, for respondent-appellant.

                             __________


Peters, P.J.

      Cross appeals from an order of the Supreme Court (Cahill,
J.), entered January 3, 2014 in Ulster County, which partially
granted plaintiff's motion to, among other things, enforce a
stipulation of settlement.

      Plaintiff suffered serious physical injuries in 2004 while
working on the deck of a barge during the course of his
employment with defendant Tilcon New York, Inc. (hereinafter
defendant). He began receiving workers' compensation benefits
following the incident and, in September 2007, commenced the
instant action against defendant, among others, seeking to
                               -2-                520025

recover for the injuries he sustained. On the scheduled trial
date, the parties entered into a stipulation of settlement
whereby plaintiff agreed to settle his claims against defendant1
for $3.25 million and defendant's agreement to "satisfy an
outstanding workers['] compensation lien in the sum of
approximately $274,000." The stipulation further provided that
it was being made without prejudice to the rights, if any, that
plaintiff had under the Workers' Compensation Law, including
equitable apportionment of the litigation costs that he incurred
in obtaining recovery in the action (see Workers' Compensation
Law § 29; Burns v Varriale, 9 NY3d 207 [2007]; Matter of Kelly v
State Ins. Fund, 60 NY2d 131 [1983]).

      Although plaintiff received the $3.25 million settlement
proceeds soon thereafter, his requests for confirmation that the
outstanding workers' compensation lien against his recovery had
been satisfied, withdrawn or otherwise extinguished apparently
went unanswered by defendant. Accordingly, plaintiff moved by
order to show cause seeking, among other things, to enforce the
terms of the stipulation of settlement and an equitable share of
the litigation expenses that he incurred in obtaining recovery in
the action. Defendant opposed the motion, asserting that no
Workers' Compensation Law § 29 (1) lien ever existed, and
therefore plaintiff was not entitled to the requested
apportionment, because he obtained recovery against his employer
rather than a third-party tortfeasor. Supreme Court agreed that
no statutory lien existed pursuant to Workers' Compensation Law
§ 29 (1), but nonetheless awarded plaintiff counsel fees based
upon the amount of the allegedly unpaid lien. These cross
appeals ensued.

      Because Workers' Compensation Law § 29 (1) applies to the
circumstances presented here, we must modify. "When a claimant
obtains recovery in a civil action for the same injuries that
were the predicate for workers' compensation benefits, the
carrier has a lien against any recovery (see Workers'
Compensation Law § 29 [1]), even where the action is brought


     1
        The action was discontinued against the remaining named
defendants upon the completion of discovery.
                              -3-                520025

against an employer" (Matter of Beth V. v New York State Off. of
Children & Family Servs., 98 AD3d 1200, 1201 [2012] [emphasis
added, citations omitted], affd 22 NY3d 80 [2013]). Indeed, as
the Court of Appeals has recently reaffirmed, "'[Workers'
Compensation Law §] 29, read in its entirety and in context,
clearly reveals a legislative design to provide for reimbursement
of the compensation carrier whenever a recovery is obtained in
tort for the same injury that was a predicate for the payment of
compensation benefits'" (Matter of Beth V. v New York State Off.
of Children & Family Servs., 22 NY3d 80, 91 [2013], quoting
Matter of Petterson v Daystrom Corp., 17 NY2d 32, 39 [1966]).
The Court reasoned that "[i]t would be unreasonable to read the
statute as mandating a different result merely because the
recovery came out of the pockets of a coemployee [or the
employer] and not from the resources of a stranger" (Matter of
Beth V. v New York State Off. of Children & Family Servs., 22
NY3d at 91 [internal quotation marks and citation omitted]).

      We reject defendant's assertion that, notwithstanding the
applicability of Workers' Compensation Law § 29, plaintiff is
nonetheless precluded from obtaining any recovery – including
apportionment of litigation costs – under the Workers'
Compensation Law because he elected to pursue his claims in this
civil action. Defendant correctly notes that Workers'
Compensation Law benefits may be awarded for injuries "subject to
the admiralty or other federal laws" only where the claimant, the
employer and the party responsible for the payment of benefits
waive their federal rights and remedies (Workers' Compensation
Law § 113; see Matter of Ahern v South Buffalo Ry. Co., 303 NY
545, 555 [1952], affd 344 US 367 [1953]; Matter of Rodriguez v
Reicon Group, LLC, 77 AD3d 1105, 1106 [2010]). Here, however,
plaintiff's complaint asserts causes of action under both state
and federal law, and there was never a finding that plaintiff was
a "seaman" for purposes of the Jones Act (see 46 USC § 30104 et
seq.) or that his claims were otherwise governed by federal
maritime law. The fact that plaintiff unsuccessfully moved for
summary judgment on his status as a seaman does not judicially
estop him from now seeking apportionment pursuant to the Workers'
Compensation Law (see Zedner v United States, 547 US 489, 504
[2006]; Matter of Stewart v Chautauqua County Bd. of Elections,
14 NY3d 139, 149-150 [2010]; Saratoga County Water Auth. v
                              -4-                520025

Gibeault, 103 AD3d 1017, 1020 [2013]; Rosario v Montalvo & Son
Auto Repair Ctr., Ltd., 76 AD3d 963, 964 [2010]).

      Inasmuch as the lien and offset provisions of Workers'
Compensation Law § 29 are applicable and available to plaintiff
under the circumstances herein, plaintiff was entitled to
enforcement of that part of the stipulation of settlement
requiring defendant to satisfy or otherwise extinguish the
outstanding workers' compensation lien, as well as his equitable
share of the "reasonable and necessary expenditures, including
attorney's fees, incurred in effecting [the] recovery" in this
action (Workers' Compensation Law § 29 [1]; see generally Kelly v
State Ins. Fund, 60 NY2d at 138-140). As such apportionment is
calculated "according to the relative benefit derived by each
party from the recovery" (Kelly v State Ins. Fund, 60 NY2d at
136; see Matter of Bissell v Town of Amherst, 18 NY3d 697, 699
[2012]; Burns v Varriale, 9 NY3d at 213-215), and the record is
not sufficient for us to make those determinations, the matter
must be remitted to Supreme Court for further proceedings
concerning this issue (see Klem v Special Response Corp., 125
AD3d 1544, 1546 [2015]; see also Mayerhofer v Turner Constr. Co.,
29 AD3d 320, 321 [2006]).

      Finally, as Supreme Court found Workers' Compensation Law §
29 inapplicable, that portion of the order granting counsel fees
to plaintiff was without foundation and must be reversed. The
parties' remaining contentions have been reviewed and are either
academic or without merit.

     Garry, Rose and Devine, JJ., concur.
                              -5-                  520025

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as (1) denied plaintiff's
motion (a) to enforce that part of the stipulation of settlement
which required defendant Tilcon New York, Inc. to satisfy or
otherwise extinguish the outstanding workers' compensation lien
and (b) for an equitable share of the reasonable and necessary
expenditures incurred in the underlying litigation, and (2)
granted plaintiff's motion for counsel fees; motion granted and
denied to that extent, and matter remitted to the Supreme Court
for further proceedings not inconsistent with this Court's
decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
