| Matter of Cedeno v PACOA |
| 2014 NY Slip Op 06028 [120 AD3d 1458] |
| September 4, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of the Claim of Efren Cedeno, Appellant,v PACOA et al., Respondents. Workers' Compensation Board,Respondent. |
Law Offices of Joseph Romano, New York City (Anthony Brooks-Morgese ofcounsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City (Marjorie S. Leff ofcounsel), for Workers' Compensation Board, respondent.
McCarthy, J.P. Appeal from a decision of the Workers' Compensation Board, filedJune 25, 2013, which, among other things, assessed a monetary penalty against claimant'scounsel pursuant to Workers' Compensation Law § 114-a (3) (ii).
Claimant resides in Queens and, after he was purportedly injured while working inNassau County, applied for workers' compensation benefits. With that application,claimant submitted a form on counsel's letterhead in which he requested that all hearingsin his case be handled at a hearing site in the City of White Plains, Westchester County.The Workers' Compensation Law Judge found that no basis existed for a change ofvenue and assessed counsel fees of $250 against claimant's counsel pursuant to Workers'Compensation Law § 114-a (3) (ii). Upon review, the Workers'Compensation Board modified by increasing the assessment of [*2]counsel fees to $500. Claimant now appeals.[FN*]
We affirm. The Chair of the Board generally sets "the times and places for thehearing of claims" by venuing them in the district in which a claimant resides if he or shelives in New York (Workers' Compensation Law § 141; see 12NYCRR 300.7 [b]). A claimant may submit a written request for change of venue thatarticulates the reasons for his or her request, and a written decision must be issuedthereon. Claimant's challenges to that policy are unpreserved for our review given that hefailed to raise them before the Board (see Matter of Mejia v Camabo Indus., Inc., 117 AD3d1362, 1362 [2014]; Matterof Toledo v Administration for Children Servs., 112 AD3d 1209, 1210 [2013]).Moreover, claimant's request for a change of venue was a procedural motion thatnecessitated a response, and the Board properly determined that it was a "proceeding[ ] inrespect of [a claim for compensation]" within the meaning of Workers' CompensationLaw § 114-a (3) (see Matter of Banton v New York City Dept. of Corr., 112AD3d 1195, 1196 [2013]).
Turning to the merits, claimant's unsubstantiated assertion that it would be "mostconvenient" for him to attend hearings in a district with no connection to either hisresidence or the accident site did not warrant a change in venue. Counsel for claimantwas well aware that such groundless requests for a venue change would be rejected and,thus, substantial evidence supports the Board's assessment of counsel fees pursuant toWorkers' Compensation Law § 114-a (3) (ii) (see Matter of Difilippo v ConEdison, 117 AD3d 1363, 1364 [2014]; Matter of Wolfe v New York City Dept. of Corr., 112 AD3d1197, 1198 [2013]). Lastly, we are unpersuaded that the Board lacked authority tomodify the decision of the Workers' Compensation Law Judge and increase the amountof that assessment (see Workers' Compensation Law § 23).
Garry, Egan Jr., Lynch and Clark, JJ., concur. Ordered that the decision is affirmed,without costs.
Footnote *:Given that the onlyissues on this appeal relate to the assessment of counsel fees, "counsel is the party ininterest pursuant to Workers' Compensation Law § 23 and 'should havefiled the notice of appeal on [his] own behalf' " (Matter of Wolfe v New York CityDept. of Corr., 112 AD3d 1197, 1198 [2013], quoting Matter of Banton v New York CityDept. of Corr., 112 AD3d 1195, 1196 n [2013]). No allegation of prejudice hasbeen made, however, and we will disregard that defect and treat the appeal as havingbeen taken by counsel (see CPLR 2001; Matter of Wolfe v New York CityDept. of Corr., 112 AD3d at 1198).