Betances v. Hexreed Industries, Inc.

• Decision Date: 16 June 1988
• Citation: 141 A.D.2d 945,530 N.Y.S.2d 622
• Parties: In the Matter of the Claim of Domingo BETANCES, Respondent, v. HEXREED INDUSTRIES, INC., et al., Appellants, and State Insurance Fund et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 622

530 N.Y.S.2d 622

141 A.D.2d 945

In the Matter of the Claim of Domingo BETANCES, Respondent, v. HEXREED INDUSTRIES, INC., et al., Appellants, and State Insurance Fund et al., Respondents.

Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division,

Third Department.

June 16, 1988.

Gladys Carrion Deleon (Miggie Warms, of counsel), Brooklyn, for Uninsured Employers Fund, appellant.

Foley, Smit, O'Boyle & Weisman (Hugh O'Boyle of counsel), New York City, for Hexreed Industries, Inc., appellant.

Raymond C. Green (Estelle Kraushar, of counsel), New York City, for State Ins. Fund, respondent.

Before MAHONEY, P.J., and CASEY, WEISS, LEVINE and MERCURE, JJ.

LEVINE, Justice.

Appeal from a decision of the Workers' Compensation Board, filed February 2, 1987, which ruled that the State Insurance Fund was not liable for the payment of compensation benefits to claimant.

Hexreed Industries, Inc. (hereinafter the employer) renewed its policy of workers' compensation insurance with the State Insurance Fund (hereinafter SIF) for the period of October 7, 1979 to October 7, 1980. SIF canceled the employer's policy effective January 5, 1980 for nonpayment of the premium. Thereafter, claimant filed a claim for benefits based on a work-related injury he allegedly sustained on February 19, 1980.

The issue presently before us is whether SIF's cancellation complied with the requirements of Workers' Compensation Law § 54(5). The Workers' Compensation Board determined that SIF properly canceled the employer's compensation insurance policy. This appeal by the employer and the Uninsured Employers' Fund (hereinafter collectively referred to as appellants) ensued.

Appellants contend that SIF failed to prove that a cancellation notice was mailed to the employer by certified or registered mail, return receipt requested, as required by Workers' Compensation Law § 54(5). In support of their contention, appellants point out that SIF was not able to produce a return receipt for the cancellation notice it claims to have mailed on December 17, 1979. The evidence educed by SIF included a copy of the notice of cancellation dated December 11, 1979 and a mailing manifest, date stamped by the post office December 17, 1979. There were 16 addressees listed in the manifest. The last one appears to have been crossed off and it is uncontested that only 15 items were mailed. According to SIF, the numbers stamped in the left-hand margin of the manifest were the certified mail numbers assigned to the 15 notices mailed on that date. On the right-hand side of the manifest is a column headed "R.R. Fee" which, according to SIF, itemized the charge incurred in mailing each cancellation notice "return receipt requested".

There was also the testimony of Roberta Gibbs, a senior underwriter for SIF, which detailed the normal office procedures for canceling policies. Gibbs testified that mailing manifests were used exclusively for cancellation notices. Gibbs also testified that a computer is used to print the manifest and the notices to be sent to the employer and the chairman of the Board. The date on the documents reflects the day they were generated by the computer. According to Gibbs, the cancellation notices are checked for accuracy prior to being placed in envelopes for mailing. After this, the notices and the manifest are taken to the post office where the letters are sent by certified mail, return receipt requested. Gibbs, however, could not explain why, in this case, there were only 15 items mailed and 16 entries on the manifest; nor could Gibbs identify who crossed out the last addressee listed on the manifest and when that was done. Hector Giannasca, the employer's president, testified that he never received notice of cancellation from SIF.

Appellants contend that the Board erred in finding that the "cancellation was sent in accordance with established office procedure so 'as to ensure the likelihood' that the notice of cancellation was not only properly addressed and mailed, but also...