When a person is injured and successfully asserts a WC claim, a later action for damages against a third-party might be subject to a WC lien.  Here, in Continental Indem. Co. v Redzematovic  2022 NY Slip Op 03866 Decided on June 14, 2022  the Appellate Division, First Department determined that the WC carrier could assert a lien against the legal malpractice recovery.

“Plaintiffs seek to assert the lien provided by Workers’ Compensation Law § 29(1) against the monies received by defendant in settlement of her legal malpractice action against her prior attorneys who failed to timely commence an action against the tortfeasors responsible for her workplace accident. Workers’ Compensation Law § 29(1) provides that, if an employee who is eligible for workers’ compensation benefits is injured “by the negligence or wrong of another not in the same employ, such injured employee . . . [may] pursue his remedy against such other,” and, if the injured employee has received workers’ compensation benefits, the workers’ compensation carrier “shall have a lien on the proceeds of any recovery from such other, whether by judgment, settlement or otherwise,” to the extent of the compensation provided (Matter of Shutter v Phillips Display Components Co. , 90 NY2d 703, 707 [1997]). Under the statutory language, the lien does not apply against any recovery obtained by the injured employee from any source, such as from her own uninsured motorist insurance coverage, but “only against recoveries from the third-party tortfeasors who are responsible for the claimant’s injuries” (id. at 708). Although defendant did not recover directly from the tortfeasors, the legal malpractice settlement “obtained as a result of the first attorney’s failure to timely commence [an action] constitutes a third-party recovery within the meaning of Workers’ Compensation Law § 29” (Matter of Theresa M.C. v Utilities Mut. Ins. Co. , 207 AD2d 481, 482 [2d Dept 1994]) because the recovery from the legal malpractice “settlement was a substitute for the usual third-party recovery against a negligent tort-feasor or wrongdoer” (Matter of McDowell v La Voy , 63 AD2d 358 [3d Dept 1978], affd 47 NY2d 747 [1979]). Accordingly, the settlement proceeds are subject to the Workers’ Compensation lien which attaches to the recovery.”

Email this postTweet this postLike this postShare this post on LinkedIn
Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.