| Matter of Banton v New York City Dept. of Corr. |
| 2013 NY Slip Op 08494 [112 AD3d 1195] |
| December 19, 2013 |
| Appellate Division, Third Department |
| In the Matter of Lamont Banton, Appellant, v New YorkCity Department of Corrections, Respondent. Workers' Compensation Board,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Benjamin C. Roth ofcounsel), for New York City Department of Corrections, respondent. Eric T. Schneiderman, Attorney General, New York City (Steven Segall of counsel),for Worker's Compensation Board, respondent.
McCarthy, J. Appeal from a decision of the Workers' Compensation Board, filedSeptember 6, 2012, which, among other things, assessed a monetary penalty againstclaimant's counsel pursuant to Workers' Compensation Law § 114-a (3) (ii).
After claimant was injured in a work-related incident, he filed a claim for workers'compensation benefits. Claimant's counsel sought a change of venue to a location closerto counsel's office, relying upon a purported "Board Rule 10.01 (1) (c)," which counselsaid required the Workers' Compensation Board to grant the request. Finding that nosuch "Board Rule" exists, that claimant failed to present a reasonable ground for thechange of venue, and that claimant's counsel had previously been admonished for filingsimilar applications, the Workers' Compensation Law Judge denied the request andassessed penalties against counsel pursuant to Workers' Compensation Law §114-a (3) (i) and (ii). On administrative appeal, the Board modified the decision byrescinding the penalty imposed pursuant to Workers' Compensation Law § 114-a(3) (i) and, finding that the appeal was filed without a reasonable basis, by increasing thepenalty imposed pursuant to Workers' Compensation Law § 114-a (3) (ii).Claimant appeals.[FN*]
We affirm. Workers' Compensation Law § 114-a (3) (ii) provides that "[i]f the[B]oard . . . determines that the proceedings in respect of [a claim forcompensation], including any appeals, have been instituted or continued withoutreasonable ground[,] . . . reasonable attorneys' fees shall be assessed againstan attorney . . . who has instituted or continued proceedings withoutreasonable grounds." We will not disturb the Board's imposition of a penalty for aviolation of that statute so long as the determination is supported by substantial evidence(see Matter of Borgal vRochester-Genesee Regional Transp. Auth., 108 AD3d 914, 915 [2013]; Matter of Martinez v LeFrak CityMgt., 100 AD3d 1110, 1111 [2012]; Matter of Poli v Taconic Correctional Facility, 83 AD3d1339, 1339-1340 [2011]). The Board considers a request for change of venue, whichis a procedural motion, to constitute a proceeding for purposes of the statute. Counselwas previously warned that what she cited as a "Board Rule" was actually a provision ofa private legal treatise, that it did not accurately reflect the law or Board policy on venue,and that any further change of venue request filed based on that reasoning and citation"will be deemed a proceeding instituted without reasonable grounds and subject to theimposition of penalties under" the statute. While the Board's clarification of the rules forchange of venue applications was not issued until after counsel filed claimant's request,that clarification was available prior to counsel filing her administrative appeal.Therefore, as substantial evidence supports the Board's findings that counsel had noreasonable grounds for filing the request for change of venue or the appeal to the Board,we will not disturb the penalty imposed.
Peters, P.J., Stein and Spain, JJ., concur. Ordered that the decision is affirmed, withcosts.
Footnote *: Although the notice ofappeal was filed in claimant's name, counsel should have filed the notice of appeal on herown behalf because the only issue on appeal pertains to the sanction against counsel (see e.g. Shields v Carbone, 99AD3d 1100, 1101 [2012]; Wilson v Wilson, 86 AD3d 824, 825-826 [2011]).