Sweeney v. Air Stream Air Conditioning Co.

• Decision Date: 13 December 2018
• Docket Number: 526761
• Citation: 167 A.D.3d 1222,87 N.Y.S.3d 757
• Parties: In the Matter of the Claim of Charles SWEENEY III, Appellant, v. AIR STREAM AIR CONDITIONING CO. et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1222
87 N.Y.S.3d 757

In the Matter of the Claim of Charles SWEENEY III, Appellant,
v.
AIR STREAM AIR CONDITIONING CO. et al., Respondents.

Workers' Compensation Board, Respondent.

526761

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

Calendar Date: November 20, 2018
Decided and Entered: December 13, 2018

Robert Golan, PC, Plainview (John F. Clennan, Ronkonkoma, of counsel), for appellant.

William O'Brien, State Insurance Fund, Melville (Janis M. Riekstins of counsel), for Air Stream Air Conditioning Co. and another, respondents.

Before: Garry, P.J., Mulvey, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

87 N.Y.S.3d 758

Appeal from a decision of the Workers' Compensation Board, filed February 6, 2018, which, among other things, ruled that claimant's application for review failed to comply with the requirements of 12 NYCRR 300.13(b)(4)(v).

Claimant, a heating, ventilation and air conditioning technician, sustained a work-related injury to his right bicep in August 2016. Ultimately, claimant, the employer and the State Insurance Fund stipulated that claimant had a 30% schedule loss of use of his right arm, and claimant was awarded benefits in the amount of $80,900.35, less payments already made. The stipulation was embodied in a decision of the Workers' Compensation Law Judge (hereinafter WCLJ) filed on October 3, 2017.

Claimant subsequently filed a request for further action, contending that the State Insurance Fund did not tender payment within the 10–day period set forth in Workers' Compensation Law § 25(3)(f), and a hearing was scheduled for November 2017. At that hearing, counsel for claimant accepted the documentation offered by the State Insurance Fund as to the payment date, stating, "It looks like it's timely," prompting the WCLJ to issue a decision finding that the payment to claimant indeed was timely. Claimant thereafter sought review by the Workers' Compensation Board, contending that there had been a mistake in calculating the timeliness of the payment and again requesting a hearing....