Bernard Tecuceanu et al., Appellants, v. Ralph Francisco et al., Defendants. State Insurance Fund et al., Respondents

(January 14, 1975) Bernard Tecuceanu et al., Appellants, v. Ralph Francisco et al., Defendants. State Insurance Fund et al., Respondents. [MAJORITY] In this negligence action in which a judgment was granted in favor of plaintiffs, plaintiffs appeal from an order of the Supreme Court, Kings County, entered November 15, 1974, which directed distribution of certain funds deposited by defendants’ insurance carrier in partial satisfaction of the judgment. At a preargument conference held before Mr. Justice Benjamin on January 13, 1975, respondents consented to a modification of the order as follows: (1) by substituting in the first decretal paragraph thereof the figure “ $250 ” in place of “ $300 ”; (2) by substituting in the second decretal paragraph thereof the following: “$2,000, without interest” in place of “$2,994.85, plus interest accrued since June 21, 1974”, the State Insurance Fund waiving its right to recover any further moneys in the event that further proceeds are recovered over and above the amount deposited, but reserving its rights under subdivision 4 of section 29 of the Workmen’s Compensation Law to receive credit for the proceeds of plaintiffs’ recovery from the third-party action; (3) by substituting in the fifth decretal paragraph thereof the following: “$2,000, without interest” in place of “ $3,394.59, plus interest accrued since June 21, 1974”. At the conference plaintiffs refused to accept such modification. Plaintiffs are hereby given until January 20, 1975 to accept the stated modification plus the following addition: “Payment shall be made to Stephen W. Sehlissel, the attorney assigned by this court on October 3,1972 to prosecute plaintiffs’ appeal from the judgment of May 16, 1972, of his disbursements of $492.03 ”, and to execute general releases to all the attorneys mentioned in the order under review, such acceptance of the modification being without prejudice to plaintiffs’ right to collect the balance of the judgment; if plaintiffs accept the modification, the order appealed from will be so modified and, as so modified, affirmed, without costs. In the event plaintiffs fail to execute an acceptance of the modification and to execute the general releases above mentioned, within the time above specified, the order appealed from is affirmed, without costs and without opinion. Hopkins, Acting P. J., Martuseello, Munder and Shapiro, JJ., concur.