| Matter of Wolfe v New York City Dept. of Corr. |
| 2013 NY Slip Op 08495 [112 AD3d 1197] |
| December 19, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Richard Wolfe, Appellant, vNew York City 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 Workers' Compensation Board, respondent.
Spain, J. Appeal from a decision of the Workers' Compensation Board, filedSeptember 18, 2012, which, among other things, assessed a monetary penalty againstclaimant's counsel pursuant to Workers' Compensation Law § 114-a (3) (ii).
Claimant resides in the Bronx and was injured in the course of his duties as acorrection officer at Rikers Island. His claim for workers' compensation benefits was notdisputed. Claimant thereafter "request[ed]," on a form provided by counsel, that allhearings in his case occur at a hearing site in the City of White Plains, WestchesterCounty, asserting that his "request MUST BE GRANTED" due to a purported "BoardRule 10.01 (1) (c)." The Workers' Compensation Law Judge (hereinafter WCLJ) foundno reasonable ground had been established for a change of venue. Additionally, notingthat "Board Rule 10.01" did not exist and that counsel for claimant had previously beenwarned that she would be sanctioned if she thereafter relied upon it as the basis for achange of venue application, the WCLJ further assessed costs of[*2]$250 and reasonable counsel fees of $250 against counselfor claimant pursuant to Workers' Compensation Law § 114-a (3) (i) and (ii). TheWorkers' Compensation Board ultimately modified the WCLJ's decision by rescindingthe assessment of costs pursuant to Workers' Compensation Law § 114-a (3) (i),finding that, pursuant to that subsection, costs "may only be assessed against a party to aclaim" and that no reason existed to penalize claimant here. The Board found the awardof counsel fees under section 114-a (3) (ii) to be proper, however, and increased thatassessment to $500. Claimant appeals.
The sole issue upon appeal is whether the assessment of reasonable counsel feesagainst counsel for claimant was warranted. Inasmuch as those fees were directlyassessed against counsel pursuant to Workers' Compensation Law § 114-a (3) (ii),counsel is the party in interest pursuant to Workers' Compensation Law § 23 and"should have filed the notice of appeal on her own behalf" (Matter of Banton v NewYork City Dept. of Corr., 112 AD3d 1195, 1196 [2013] [decided herewith]; see Matter of Leedy, 241 App Div 643,643 [1934]; cf. Matter of Lewis v Lefren, Inc., 234 App Div 513, 514 [1932]). Inthe absence of any allegation of prejudice, we will, in this case, disregard that error "andtreat[ ] the appeal as taken by" counsel (Matter of Tagliaferri v Weiler, 1 NY3d605, 606 [2004]; see CPLR 2001).
Turning to the merits, we affirm. Workers' Compensation Law § 114-a (3) (ii)permits the Board to assess reasonable counsel fees against counsel where a proceedingbefore it has "been instituted or commenced without reasonable ground." Counsel forclaimant had previously been warned that seeking a change of venue based upon thenonexistent "Board Rule" would subject her to sanctions, and nevertheless elected to doso in this proceeding. Moreover, inasmuch as White Plains had no obvious connection toclaimant or the accident that led to this claim, the Board appropriately found that counselhad not advanced any legitimate reason for a change of venue. Substantial evidence thussupports the Board's determination to assess reasonable counsel fees against counsel forclaimant pursuant to Workers' Compensation Law § 114-a (3) (ii) (see Matterof Banton v New York City Dept. of Corr., supra; Matter of Toledo vAdministration for Children Servs., 112 AD3d 1209 [2013] [decided herewith]). Counsel's remaining contentions, to the extent that theyare properly before us, have been considered and are meritless.
Stein, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed,with costs.