| Matter of Barone v Interstate Maintenance Corp. |
| 2010 NY Slip Op 04081 [73 AD3d 1302] |
| May 13, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Giovanni Barone, Claimant, vInterstate Maintenance Corporation et al., Appellants, and Travelers Insurance Corporation,Respondent. Workers' Compensation Board, Respondent. |
—[*1] Vecchione, Vecchione & Conners, Garden City Park (Sean J. McKinley of counsel), forTravelers Insurance Corporation, respondent. Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forWorkers' Compensation Board, respondent.
Mercure, J.P. Appeal from a decision of the Workers' Compensation Board, filed October23, 2008, which denied the employer's request for reconsideration and/or full Board review.
In May 1993, claimant suffered a heart attack while loading 250-pound bags of wire into avan at the employer's warehouse in New Jersey. Claimant, a New York resident, was to [*2]transport the wire to Brooklyn. The employer filed a report of theaccident, and claimant applied for workers' compensation benefits in New York. TravelersInsurance Corporation, which provided workers' compensation coverage to the employer in NewJersey, controverted coverage on the ground that it did not insure the employer for New Yorkaccidents. Although multiple notices of hearings were served upon the employer at the NewJersey address listed on the accident report and the Workers' Compensation Board served asubpoena ordering the employer to appear through service on the Secretary of State, the noticeswere returned as undeliverable and the employer failed to appear.
Ultimately, the Board, reversing a Workers' Compensation Law Judge's ruling, concluded ina 1996 decision that subject matter jurisdiction existed. Thereafter, Travelers was dischargedfrom the case and claimant was awarded compensation. In 1998, insurance brokers writing onbehalf of the employer sent the Board three letters acknowledging the employer's receipt of anotice to pay the Uninsured Employers Fund as a result of the claim. The brokers indicated thatthe employer had gone out of business and asserted that Travelers should have covered theaccident. The case was then dormant for 10 years, until the employer and its president appliedfor reconsideration and/or full Board review of the Board's 1996 decision finding subject matterjurisdiction. The Board denied the application, prompting this appeal.
Inasmuch as the employer appeals only the Board's decision denying reconsideration and/orfull Board review, "the merits of the underlying decision are not properly before us. Rather, ourreview is limited to determining whether the Board's denial of [the employer's] application wasarbitrary and capricious or otherwise constituted an abuse of discretion" (Matter of Nikolaeva v Cattaraugus CountyNursing Home, 37 AD3d 969, 969 [2007] [citations omitted]; see Matter of Snarski v New Jersey Mfrs.Ins. Group, 20 AD3d 803, 804 [2005]). Here, the employer failed to demonstrate theexistence of any newly discovered evidence, a material change in condition or that the Boardimproperly failed to consider the issues raised before it. Furthermore, the employer failed tomake its application "within a reasonable time after [it] . . . had knowledge of thefacts constituting the grounds upon which such application [was] made" (12 NYCRR 300.14[b]). Accordingly, we cannot say that the Board abused its discretion in denying the employer'srequest for reconsideration and/or full Board review (see Matter of Rusyniak v SyracuseFlying School, 37 NY2d 384, 387-388, 390-391 [1975]; Matter of D'Errico v New York City Dept. of Corrections, 65 AD3d795, 796-797 [2009], appeal dismissed 13 NY3d 899 [2009]; Matter of Snarski vNew Jersey Mfrs. Ins. Group, 20 AD3d at 804-805; Matter of Wagner v Emile & RobertBeauty Salon, 27 AD2d 608, 610 [1966]).
Finally, we note that the employer's arguments regarding personal jurisdiction and allegedlyimproper conduct of Travelers were not raised before the Board in the application forreconsideration and/or full Board review and, thus, are unpreserved for our review (see Matter of Beers v Jump Start AdvancedAcademics, 57 AD3d 1026, 1028 [2008]; Matter of Huang Sheng Ku v Dana Alexander, Inc., 12 AD3d 988,989 [2004]).
Peters, Rose, Stein and McCarthy, JJ., concur. Ordered that the decision is affirmed, withoutcosts.