Gentile v. Sovereign Motor Cars

• Decision Date: 14 October 2010
• Parties: In the Matter of the Claim of Marie L. GENTILE, as Widow of Jay Alan Gentile, Deceased, Appellant, v. SOVEREIGN MOTOR CARS et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 165
77 A.D.3d 1027

In the Matter of the Claim of Marie L. GENTILE, as Widow of Jay Alan Gentile, Deceased, Appellant,
v.
SOVEREIGN MOTOR CARS et al., Respondents.
Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 14, 2010.

909 N.Y.S.2d 166

John J. Caracciolo, Huntington, for appellant.

Gregory J. Allen, State Insurance Fund, New York City (Janis M. Riekstins of counsel), for Sovereign Motor Cars and another, respondents.

Before: PETERS, J.P., SPAIN, MALONE JR., STEIN and EGAN JR., JJ.

MALONE JR., J.

77 A.D.3d 1027

Appeal from a decision of the Workers' Compensation Board, filed October 23, 2008, which denied claimant's application for reconsideration and/or full Board review of a prior decision ruling that decedent's death was not causally related to a work-related injury.

In 1994, Jay Gentile (hereinafter decedent) suffered a work-related injury to his neck and was awarded workers' compensation benefits. Decedent died in 2002 with the cause of death determined to be atherosclerotic heart disease. Claimant, decedent's wife, subsequently applied for death benefits. Following hearings, a Workers' Compensation Law Judge found that decedent's death was not causally related to his 1994 neck injury and disallowed the claim. The Workers' Compensation Board, in a decision filed February 29, 2008, affirmed the decision of the

77 A.D.3d 1028

Workers' Compensation Law Judge and closed the case. No appeal from that decision was taken. Thereafter, claimant applied for reconsideration and/or full Board review. Her application was denied and claimant now appeals.

We affirm. As claimant only appeals from the Board's denial of her application for reconsideration and/or full Board review, the merits of the underlying decision are not before us ( see Matter of Earnest v. J.P. Molyneux Studio, Ltd., 47 A.D.3d 1176, 1177, 852 N.Y.S.2d 401 [2008], lv. dismissed 10 N.Y.3d 855, 859 N.Y.S.2d 615, 889 N.E.2d 494 [2008]; Matter of Nikolaeva v. Cattaraugus County Nursing Home, 37 A.D.3d 969, 969, 828 N.Y.S.2d 923 [2007] ). Accordingly, our review is limited to whether the Board's denial of the application was arbitrary or capricious or otherwise constituted an abuse of discretion ( see Matter of Green v. Kimber Mfg., Inc., 59 A.D.3d 782, 783, 872 N.Y.S.2d 750 [2009], lv. dismissed 12 N.Y.3d 865, 881 N.Y.S.2d 657, 909 N.E.2d 579 [2009]; Matter of Barber v. New York City Tr. Auth., 50 A.D.3d 1402, 1403, 857...