The petitioner allegedly sustained injuries during the course of his employment as a result of a motor vehicle accident on September 11, 2010. According to the police report submitted by petitioner, petitioner was operating a motor vehicle registered to Kalimera Trans Inc., when it collided with another motor vehicle registered to Granite Traylor Frontier and operated by Ronald Duane Albers. Petitioner filed a claim for workers' compensation benefits as a result of [*2]the accident, alleging that he sustained injuries to his head, neck, right shoulder, left wrist and both knees. Petitioner received workers' compensation benefits from respondent Hereford, the workers' compensation carrier for his employer, for medical expenses totaling $8,000.45. On or about August 10, 2011, petitioner reached a settlement with the alleged tortfeasors' insurer, Continental Casualty Company, in the amount of $17,500.00.

Respondent Hereford apparently did not learn of the settlement until a workers' compensation hearing held on November 15, 2011, concerning petitioner's claim. At no time at that hearing or at any time thereafter did respondent Hereford consent to the settlement (see, Workers' Compensation Law § 29[5]).^[FN1] Pursuant to a decision of the Workers' Compensation Board law judge, filed on June 6, 2012, petitioner's case was closed pending submission of a consent letter.

Petitioner obtained the order to show cause dated June 6, 2012, seeking to compel respondent Hereford to grant him permission nunc pro tunc to settle his claim against the alleged tortfeasors, as a means of preserving his entitlement to any future Worker's Compensation benefits. Petitioner asserts that by his counsel's letter, dated January 24, 2012, he requested Hereford to consent to settlement of the "claim" for $17,500.00. According to petitioner, Hereford failed to respond to the letter and refuses to consent. Respondent Hereford opposes the application.

In support of his application, petitioner submits the affirmation of his counsel, various exhibits and his own affidavit denominated as "affidavit in support of petition." No petition, however, has been submitted to the Court (CPLR 304). Petitioner, furthermore, has failed, upon the foregoing papers, to provide any authority for the Court to compel a compensation carrier to consent, nunc pro tunc, to a settlement of a third-party claim. Even if the Court were to assume mandamus is an available remedy to petitioner, under well-settled law, mandamus is not available to compel an act in respect to which judgment or discretion may be exercised (see generally, Matter of Mullen v Axelrod, 74 NY2d 580, 583 [1989]). Petitioner has failed to demonstrate that the granting of consent by respondent Hereford is mandatory and nondiscretionary.

To the extent that the petitioner actually seeks judicial approval of a settlement for less than the compensation provided by law pursuant to Workers' Compensation Law section 29(5), the affidavit of petitioner does not meet the requirements set forth pursuant to that section for a petition. In addition, petitioner has failed to present an affidavit of a physician (see, Workers' Compensation Law § 29[5]), and the affirmation of the petitioner's counsel likewise does not meet the requirements of Workers' Compensation Law section 29(5). [*3]

The Court, furthermore, is without authority to grant an application pursuant to Workers' Compensation Law section 29 (5) to approve a settlement nunc pro tunc, in the absence of a showing that a third-party action has ever been commenced (see, Matter of Cruz v First Cardinal Corp., 273 AD2d 233 [2nd Dept. 2000]). Petitioner states, in his affidavit in support of his application, that "[p]rior to commencement of an action, Continental Casualty Company offered $17,500.00 in settlement of my action, and I accepted that amount in settlement of my case." Petitioner, however, has made no showing that his "case" was a third-party action which was commenced. To the extent counsel for respondent Hereford likewise states that "petitioner commenced a third party personal injury action against Granite Trayloe [sic] Frontier and Ronald Duan [sic] Alvers [sic] in the Supreme Court, State of New York, County of Queens," an examination of the records on file with the County Clerk does not reveal any such action. An examination of the e-filings for the Supreme Court, Queens County, likewise does not reveal any such action.

As a consequence, the application is denied.

The foregoing constitutes the decision, opinion, and order of the Court.

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J.S.C.

Dated: October 26, 2012