Auslander v. Textile Workers Union of America

• Decision Date: 04 August 1977
• Citation: 59 A.D.2d 90,397 N.Y.S.2d 232
• Parties: Claim of Mary AUSLANDER, Appellant, v. TEXTILE WORKERS UNION OF AMERICA et al., Respondents, Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 232

397 N.Y.S.2d 232

59 A.D.2d 90

Claim of Mary AUSLANDER, Appellant, v. TEXTILE WORKERS UNION OF AMERICA et al., Respondents, Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

Aug. 4, 1977.

Roshwald, Bass & Caine, New York City (Hyman Bass, New York City, of counsel), for appellant.

Foley, Smit, Morabito & O'Boyle, New York City (Hugh O'Boyle, New York City, of counsel), for Textile Workers Union of America and another, respondents.

Louis J. Lefkowitz, Atty. Gen., New York City, for Workmen's Compensation Board, respondent.

Before GREENBLOTT, J. P., and MAHONEY, MAIN, LARKIN and HERLIHY, JJ.

GREENBLOTT, Justice Presiding.

Claimant's decedent, Charles Auslander, was an employee of the Textile Workers Union of America, a national labor union with headquarters in New York. There is evidence in the record that the decedent had been hired in New York originally, worked at various offices in different parts of the country at different times, received salary from New York and was under the direction and control of superiors in New York. On February 10, 1965, decedent was regional director of the union's local headquarters in Lynchburg, Virginia. His residence at the time was in South Carolina. On the date aforementioned, claimant was injured in Virginia, during the course of a business trip from New York to his office in Lynchburg. After initial hospitalization in Virginia, he was twice hospitalized in South Carolina, and died there on May 17, 1965.

A claim for workmen's compensation benefits and death benefits was brought in Virginia, and the facts relating to the initiation of that claim shall be hereafter developed. The award as made under Virginia law provided payments of $39 per week until May 16, 1965, and death benefits in the same amount for 300 weeks thereafter. On March 5, 1971 a claim was filed for death benefits in New York. The carrier controverted the claim on grounds of claimant's failure to file within two years of the date of injury or death under section 28, and also urged that the New York Workmen's Compensation Board lacked jurisdiction. A decision of the Referee finding no jurisdiction was reversed by the board. However, the board disallowed the claim, as previously indicated, pursuant to section 28. No appeal has been taken by the employer or carrier, wherefore no issues relating to the question of jurisdiction are before us.

Section 28 of the Workmen's Compensation Law establishes a two-year period of limitations for the filing of claims and further provides "(n)o case in which an advance payment is made to an employee or to his dependents in case of death shall be barred by the failure * * * to file a claim * * * ." The essence of claimant's position upon this appeal is that payments pursuant to the Virginia award constituted advance payments of compensation within the meaning of section 28 so as to render inapplicable the two-year statute of limitations contained therein. While the definition of advance payment has received judicial consideration in countless cases, never before has a New York court been called upon to determine whether and under what circumstances payments of compensation pursuant to the award of another jurisdiction come within the scope of that term. The issue is thus one of first impression in New York. ¹

We feel that a determination of this issue requires, at the outset, consideration of the purpose underlying the statutory provision. As we see it, the advance payment rule is designed to protect a claimant (or his dependents in the case of death), who may be said to have been lulled into not filing a timely claim by the receipt of payments in the nature of compensation voluntarily made by the employer or carrier. Where a claim has been initiated in another jurisdiction with the knowing and active participation of the claimant or his dependents, the remedial purposes of the advance payment rule under section 28 would not seem to be applicable, and we so hold. Were the rule otherwise, the expiration of periods of limitations established under New York law could be deferred indefinitely by proceedings initiated by the claimant before a court or agency of another jurisdiction.

Consideration of the policy underlying the advance payment provision does not recommend the adoption of such a rule (see Windrem v. Bethlehem Steel Corp., D.C., 293 F.Supp. 1; Industrial Comm. v. Pearcy, 149 Colo. 457, 369 P.2d 560; Jutton-Kelly Co. v. Industrial Comm., 220 Wis. 127, 264 N.W. 630). In the cases cited, claims for compensation were filed and awards made under the laws of one jurisdiction, and subsequent claims were filed in other jurisdictions after the time limits established by the statutory provisions of such other jurisdictions had run. The claimants in those cases argued that such time limits had been tolled by payments under the earlier awards, relying on statutory provisions removing the bar of the statute of limitations under provisions similar to our advance payment rule. These contentions were rejected.

In our view, the approach adopted in the cited cases, in circumstances where payments are made and accepted pursuant to an official award of an appropriate court or agency in another state, the procurement of which award has been actively participated in by claimant, represents the interpretation which should be put upon the New York statute in similar circumstances. If payment is made pursuant to an...