| Matter of Hyland v Matarese |
| 2008 NY Slip Op 08375 [56 AD3d 841] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Samantha Hyland, on Behalf of Jerrel Corley, asSurviving Child of Walter Corley, Jr., Deceased, Respondent, v Daniel Matarese, Appellant.Workers' Compensation Board, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forWorkers' Compensation Board, respondent.
Peters, J.P. Appeals (1) from a decision of the Workers' Compensation Board, filed April 4,2007, which, among other things, ruled that the employer's applications for review wereuntimely, and (2) from a decision of said Board, filed November 9, 2007, which denied theemployer's request for reconsideration and/or full Board review.
In February 1997, decedent, Walter Corley, Jr., was shot and killed while working as asecurity guard at a nightclub. Thereafter, a claim for workers' compensation death benefits wasfiled by claimant on behalf of her son, as decedent's minor child. Investigation concerning theidentity of decedent's employer revealed that Daniel Matarese owned the nightclub on the date ofthe shooting. In March 2000, shortly after Matarese submitted an affidavit wherein he averredthat he understood that he may be subject to liability for decedent's death, a notice of hearing wassent to him at 209 Colby Place in Morganville, New Jersey. Matarese appeared at the ensuingMay 2000 hearing, at which time a Workers' Compensation Law Judge (hereinafter WCLJ) made[*2]a finding of jurisdiction over him, placed him on notice as theemployer and continued the case. Over the next year and a half, numerous hearings werescheduled and the case was continued multiple times; however, Matarese did not appear at any ofthese hearings or any future hearings.
In December 2001, a hearing was held and the case was marked "no further action" pendingthe receipt of a police report relating to the shooting of decedent. When the police report waseventually received by the Workers' Compensation Board in January 2003, the Board reopenedthe case and sent notice to all parties. Notices for the various hearings scheduled from 2003through 2005 were sent to Matarese by certified mail, return receipt requested, but were allreturned as either "unclaimed" or undeliverable as addressed. Allegedly, in the summer of 2004,Matarese moved from his Colby Place address to 485 Texas Road in Morganville, New Jersey,but failed to notify the Board of the change of address.
At an April 2006 hearing, for which Matarese was sent notice but failed to appear, the WCLJfound that decedent's death was causally related to his employment, that claimant's son wasdecedent's lawful son entitled to awards at a weekly rate of $250, and that Matarese wasdecedent's employer on the date of the accident. These findings were embodied in the WCLJdecision filed May 4, 2006. On August 10, 2006, after allegedly first learning of the April 2006hearing and subsequent decision, Matarese sought Board review of the WCLJ decision and fileda supplemental application for Board review on October 30, 2006. By decision filed April 4,2007, the Board denied Matarese's applications on procedural grounds, finding, among otherthings, that the applications were untimely. Subsequently, the Board denied Matarese'sapplication for full Board review and/or reconsideration. He appeals both decisions.
Workers' Compensation Law § 23 requires a party seeking review of a WCLJ decisionto file a written application for review with the Board within 30 days of the filing of the decision(see Matter of Doner v Nassau CountyPolice Dept., 24 AD3d 978, 978 [2005]; Matter of Giancola v Eagle Elec. Mfg. Co., Inc., 13 AD3d 824, 825[2004], lv dismissed 5 NY3d 783 [2005]). Here, both Matarese's initial application, filedmore than three months after the filing of the WCLJ decision, and his supplemental application,filed nearly six months after the filing of said decision, were untimely. Consequently, the Boardexercised its broad discretion to reject as untimely the applications for review, a determinationthat we will not disturb absent an abuse of discretion (see Matter of Backus v Wesley Health Care Ctr., Inc., 26 AD3d664, 665 [2006]; Matter of Doner v Nassau County Police Dept., 24 AD3d at 979).
In his applications, Matarese explained that the delay in filing was due to the fact that henever received notice of the WCLJ's May 4, 2006 decision or the April 26, 2006 hearing whichresulted in that decision, as such notices were sent to his former Colby Place address. The Boardfound, and we agree, that Matarese's failure to receive these notices was due to his own conductin failing to provide the Board with his new address. Indeed, such a conclusion finds support innumerous prior decisions of the Board, which hold that an employer or workers' compensationcarrier has the affirmative obligation to provide the Board with any change of address (seee.g. Matter of Rising Star Contr. Corp., 2008 WL 2610859, *2, 2008 NY Wrk Comp LEXIS6004, *3-4 [WCB No. 0062 2939, June 18, 2008]; Matter of Baldor Enters., 2002 WL31536345, *1, 2002 NY Wrk Comp LEXIS 97521, *2 [WCB No. 0011 0904, Nov. 7, 2002];Matter of Kunstadt, 2001 WL 1027768, *2, 2001 NY Wrk Comp LEXIS 89858, *2-3[WCB No. 2971 9969, Apr. 2, 2001]), and that the delay in receiving notice of a decision, causedby the failure to so inform the Board, may not excuse the untimely filing of an application forreview (see e.g. Matter of Great E. Litho Corp., 2000 NY Wrk Comp LEXIS 112886, *1[WCB [*3]No. 5972 0759, May 18, 2000]; Matter of RyderCommercial Leasing, Inc., 1999 WL 33265277, *1, 1999 NY Wrk Comp LEXIS 9628316,*2-3 [WCB No. 0962 8316, Nov. 22, 1999]). Notably, Matarese does not dispute that he failed toinform the Board of his new address, instead arguing that the Board had actual notice due to thepresence of a Texas Road address on two envelopes that were sent to Matarese's Colby Placeaddress in 2005 but were marked "Return to Sender." However, since the record reveals that asubsequent notice sent to this Texas Road address was returned to the Board as "Refused," wefind that it was reasonable for the Board to resume sending notices to Matarese's address ofrecord. Under these circumstances, we cannot say that the Board abused its discretion in refusingto entertain the untimely applications (see Matter of Eberle v New York State Dept. of MentalHygiene, Wassaic State School, 60 AD2d 722 [1977]; see also Matter of Reillo v EnergySaver Insulation Corp., 306 AD2d 775, 776-777 [2003]).
Turning to Matarese's challenge to the Board's denial of his application for full Board reviewand/or reconsideration, "our review is limited to whether the Board abused its discretion or actedin an arbitrary or capricious manner in denying [the] application" (Matter of Robinson v Interstate Natl.Dealer, 50 AD3d 1325, 1326 [2008]; see Matter of Molina v Lopano, 47 AD3d 1083, 1084 [2008]). Inhis application, Matarese primarily challenged the WCLJ's findings of an employer-employeerelationship, submitted his own affidavit and that of a manager at the nightclub in support of hisposition that he was not the employer of decedent on the date of the accident, and argued thatfurther development of the record on that issue was necessary. The proffered evidence, however,was not new evidence that was previously unavailable at the time of the hearings (see Matterof Graham v Pathways, Inc., 305 AD2d 830, 831 [2003], lv dismissed 1 NY3d 564[2003]; Matter of Howard v New York Times, 302 AD2d 698, 700 [2003], lvdismissed in part and denied in part 100 NY2d 531 [2003]). Moreover, Matarese appeared atthe initial hearing in 2000 and was specifically put on notice as the employer, yet opted not toappear for any of the subsequent scheduled hearings between 2000 and 2003 for which he hadnotice and could have presented evidence that he was not the proper employer. Accordingly,upon our review of the record, we are unable to conclude that the Board's denial of Matarese'sapplication was an abuse of discretion or arbitrary and capricious (see Matter of Rambally v Greenberg,14 AD3d 742, 743 [2005]).
Matarese's remaining contentions, to the extent not addressed herein, have been reviewed andfound to be lacking in merit.
Rose, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the decisions are affirmed,without costs.