Bellini v. Great American Indem. Co.

• Decision Date: 19 July 1949
• Citation: 299 N.Y. 399,87 N.E.2d 426
• Parties: BELLINI v. GREAT AMERICAN INDEMNITY CO. et al.
• Court: New York Court of Appeals Court of Appeals

299 N.Y. 399

87 N.E.2d 426

BELLINI

v.GREAT AMERICAN INDEMNITY CO. et al.

Court of Appeals of New York.

July 19, 1949.

Appeal from Supreme Court, Appellate Division, Third Department.

Workmen's compensation proceeding by Eugene Bellini, employee, opposed by the Great American Indemnity Company, insurance carrier, and Architectural Home Corporation and others. From an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered November 26, 1948, 274 App.Div. 955, 85 N.Y.S.2d 174, which unanimously affirmed an award of the Workmen's Compensation Board made under Workmen's Compensation Law, the insurance carrier appeals by permission, opposed by employee, employer, and Workmen's Compensation Board.

Order of Appellate Division reversed, 61 award annulled, and matter remitted to Workmen's Compensation Board. Jeremiah F. Connor, New York City, for appellant.

Nathaniel L. Goldstein, Attorney General (Theodore M. Schwartz, New York City, Wendell P. Brown, Albany, and Roy Wiedersum, New York City, of counsel), for Workmen's Compensation Board, respondent.

DYE, Judge.

Broadly, the question presented on this appeal by permission, is whether the tolling of limitations of time for suit by or against any person in military service, Military Law, Consol.Laws, c. 36, ss 304, 308, L.1941, ch. 686, eff. April 23, 1941, is available as a defense to a third party or, to state it more precisely, whether the statutory time limitation of ‘seven years from the date of the injury * * * and * * * three years from the date of the last payment of compensation’, Workmen's Compensation Law, Consol.Laws, c. 67, s 25-a, may be diminished in favor of the Special Fund for Reopened Cases by the time the alleged employer, subsequently released from liability for the original award, is absent in military service.

The claimant, Bellini, sustained accidental injuries November, 1, 1938, while working as a plasterer's helper in the course of work on a house being built by Architectural Home Corp. as owner. Its carrier, the appellant here, paid compensation to claimant for the period from November 1, 1938, to February 6, 1939, when payments were discontinued, it being claimed that Anthony Castro, an independent contractor, was the employer. On May 11, 1939, Castro, on controverted proof, was found to be the employer and the case continued leading to an award of 65% permanent loss of use of left foot, a schedule loss, Workmen's Compensation Law, s 15, subd. 3. The case was closed January 19, 1941. While the compensation claim was pending against Castro, who was uninsured and could not pay the award, a third party suit was brought by claimant against Architectural Home Corp. This was voluntarily discontinued January 9, 1941. The compensation award against Castro was under review and was confirmed June 10, 1941. Castro's appeal to the Appellate Division from the award under date of January 11, 1940, was later dismissed on January 10, 1946, for failure to prosecute. Architectural Home Corp. and its carrier, Great American Indemnity Company, were not parties. Castro was inducted into the Army of the United States January 22, 1941, and continued therein until his honorable discharge December 10, 1944. Thereafter, on the date of March 14, 1946, he made application to have the compensation case reopened on the ground of newly discovered evidence showing he was not the employer. The claimant, Bellini, also applied to reopen, claiming additional compensation for protracted healing period. When the application to reopen was granted August 9, 1946, the Special Fund for Reopened Cases was put on notice because there had been ‘a lapse of seven years from the date of the injury * * * and * * * three years from the date of the last payment of compensation’. Workmen's Compensation Law, s 25-a. It claimed such statutory time should be diminished by the period Castro was in the military service. Military Law, s 308. The board, after hearing additional testimony on the question of employment, rescinded its former determination that Castro was the employer and relieved both him and the special fund from liability and in place thereof made a schedule award for loss of use of left foot plus an additional amount for protracted healing period less a credit for fifteen weeks' payments theretofore made by it against the Great American Indemnity Company, the appellant here, as carrier or Architectural Home Corp. The case was then closed.

The Great American Indemnity Company as carrier of Architectural Home Corp. then took an appeal from such determination which has been affirmed by the Appellate Division, Third Department, 274 App.Div. 955, 85 N.Y.S.2d 174. The failure of the employer to join in such appeal in no way prejudices the rights of the carrier as an appellant. Workmen's Compensation Law, ss 23, 54, subd. 2; Matter of Jaabeck v. Theodore A. Crane's Sons Co., 238 N.Y. 314, 144 N.E. 625. The issue of employment being one of fact and there being sufficient evidence to sustain such finding, it is beyond out reach. Workmen's Compensation Law, s 20; Matter of Enright v. Asplundh Tree Expert Co., 271 App.Div. 847, 65 N.Y.S.2d 871, affirmed 297 N.Y. 452, 74 N.E.2d 170. Nor does the fact that the claimant brought a third party suit against Architectural Home Corporation, later found to be the employer, bar his claim for compensation. Matter of Russell v. 231 Lexington Ave. Corp., 266 N.Y. 391, 195 N.E. 23, 98 A.L.R. 413. The controversy here in solely between the appellant carrier and the special fund as to which of them shall pay the award, the happening of the accident and the injuries sustained not now being questioned. Its solution depends on whether the statutory time limit for holding the carrier liable for an award in a reopened claim, Workmen's Compensation Law, ss 25-a, 123 is tolled by the Military Law which provides so far as pertinent, viz..

‘s 308. Statutes of limitations; time of military service not included. The period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any...