Estupinan v. Cleanorama Drive-In Cleaners

• Decision Date: 14 July 1969
• Docket Number: DRIVE-IN
• Citation: 32 A.D.2d 1026,301 N.Y.S.2d 1019
• Parties: Claim of Elba D. ESTUPINAN, Respondent, v. CLEANORAMACLEANERS et al., Appellants. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 1019

301 N.Y.S.2d 1019

32 A.D.2d 1026

Claim of Elba D. ESTUPINAN, Respondent, v. CLEANORAMA DRIVE-IN CLEANERS et al., Appellants Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

July 14, 1969.

Jack S. Dweck, New York City, for respondent.

Anne G. Kafka, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen. (Daniel Polansky and Jorge L. Gomez, Asst. Attys. Gen., of counsel), for Workmen's Compensation Board.

Before GIBSON, P.J., and HERLIHY, COOKE, GREENBLOTT and REYNOLDS, JJ.

PER CURIAM.

Appeal from a decision awarding death benefits to decedent employee's mother; the question of dependency being the sole issue presented on the appeal.

There is evidence which the board was entitled to accept that decedent contributed to the necessary expenses of the family of four substantially more than his share of the cost of maintenance of the household (see Matter of Telarico v. Conway, 28 A.D.2d 776, 280 N.Y.S.2d 827; Matter of Goldsmith v. Good Humor Corp., 23 A.D.2d 901, 259 N.Y.S.2d 364; Matter of Frear v. Ells, 200 App.Div. 239, 193 N.Y.S. 324; Matter of Frey v. McLoughlin Bros., 187 App.Div. 824, 175 N.Y.S. 873); and the board was equally warranted in inferring that the family was detrimentally affected by the loss of his contributions (Matter of Smith v. Crosson's Serv. Sta., 28 A.D.2d 577, 279 N.Y.S.2d 414, mot. for lv. to app. den. 20 N.Y.2d 644, 284 N.Y.S.2d 1027, 230 N.E.2d 739; Matter of Markidis v. American Airlines, 21 A.D.2d 927, 251 N.Y.S.2d 382; Matter of Holloway v. Camp Hatikvah, 14 A.D.2d 638, 218 N.Y.S.2d 304).

Decision affirmed, with costs to the Workmen's Compensation Board.

GIBSON, P.J., and HERLIHY, COOKE and GREENBLOTT, JJ., concur.

REYNOLDS, J., dissents and votes to remit.

REYNOLDS, Justice (dissenting).

In my opinion the present findings and record are clearly and grossly inadequate to support the board's finding of dependency. Initially the findings are inadequate in this case because no finding was made as to the exact amount contributed by the older sister, Beatrice, which figure is crucial in determining the percentage of decedent's contribution to the total family income. All the board does is note the total amount earned by the claimant, decedent and Beatrice. Additionally, the findings made by the board as to expenses are also unsatisfactory. The board made no finding for food costs, while it is obvious that this is an expense that must be considered in determining household expenses, especially since the claimant testified as to food costs. Concededly, it is within the board's power to reject certain items as expenses, but the board did not list or reject as an expense an amount for car upkeep, while allocating an amount for car payments and car insurance. The board also did not find as household expenses the amount claimant testified she spent for toiletries, dry cleaning and church donations, but neither did it reject such expenses expressly. The board's lack of findings with respect to food, car upkeep, toiletries, dry cleaning, and church expenses, and in addition Beatrice's contribution renders the record completely unsuitable for review. Secondly, there is a substantial unexplained discrepancy between alleged family income and the confirmed family expenses. The figure for contribution ranges from $96.57 to $106.57, depending on the...