Trautman v. Savin Copy Products

• Decision Date: 06 January 1994
• Citation: 200 A.D.2d 790,606 N.Y.S.2d 458
• Parties: In the Matter of the Claim of Walter TRAUTMAN, Respondent, v. SAVIN COPY PRODUCTS et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 458

606 N.Y.S.2d 458

200 A.D.2d 790

In the Matter of the Claim of Walter TRAUTMAN, Respondent, v. SAVIN COPY PRODUCTS et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

Jan. 6, 1994.

Morris N. Lissauer, New York City, for appellant.

Fischer Bros. (Amy Levitt, of counsel), New York City, for Savin Copy Products and another, respondents.

Before CARDONA, P.J., and MIKOLL, MERCURE, CREW and YESAWICH, JJ.

MERCURE, Justice.

Appeals from a decision and amended decision of the Workers' Compensation Board, filed September 10, 1991 and July 29, 1992, which directed that the award of workers' compensation benefits be paid by the Special Fund for Reopened Cases.

The only issue that need be determined on these appeals is whether the finding of the Workers' Compensation Board that the February 11, 1988 report of Mihai Dimancescu was not filed with the Workers' Compensation Board within seven years of claimant's January 8, 1982 accident (see, Workers' Compensation Law § 25-a[1] was unreasonable. In view of the absence of any probative evidence that the report was filed with the Board, we answer the question in the negative and accordingly affirm. Notably, because no evidence was adduced as to Dimancescu's office practice and procedure regarding mailing, no presumption of delivery arose ( compare, Bossuk v. Steinberg, 58 N.Y.2d 916, 919, 460 N.Y.S.2d 509, 447 N.E.2d 56; Matter of Allen v. Bausch & Lomb, 130 A.D.2d 802, 803, 514 N.Y.S.2d 829). Although not necessary for our determination, we also agree with the Board's determination that the report failed to state a change in condition upon which compensation could be awarded in any event (see, Matter of Pucser v. Allegheny Ludlum Steel Corp., 45 A.D.2d 798, 357 N.Y.S.2d 169). The remaining contentions of the Special Fund for Reopened Cases have been considered and rejected.

ORDERED that the decision and amended decision are affirmed, with costs.

CARDONA, P.J., and MIKOLL, CREW and YESAWICH, JJ., concur.