Claim of Aiello v. Rissel Construction Corp.

37 A.D.2d 884, 325 N.Y.S.2d 330, 1971 N.Y. App. Div. LEXIS 3171

Opinion

Appeal from decisions of the Workmen’s Compensation Board which disallowed a claim for death benefits, denied an application for reconsideration and denied an amended application for reconsideration. On March 5, 1970 the hoard affirmed a Referee’s decision disallowing claimant death benefits on the ground that she was not decedent’s legal widow. A notice of appeal from that decision was filed on April 13,1970 which was properly rejected by the board as untimely and must be dismissed (Workmen’s Compensation Law, § 23). Thereafter the claimant made an application for reconsideration and later an amended application for reconsideration both of which the board denied. Claimant filed timely appeals from both of these decisions denying reconsideration. We, however, find no merit in these appeals. In reviewing the board’s denial of the applications for reconsideration we are limited in our review to the question of whether the board’s action was arbitrary and capricious or an abuse of discretion (e.g., Matter of Miller v. Victoria Bondholders Corp., 24 A D 2d 1064, mot. for lv. to app. den. 17 N Y 2d 422; Matter of Szewczuk v. Bethlehem Steel Co., 19 A D 2d 915). We find nothing in the way of additional facts or new information which was previously unavailable to the claimant submitted to the board in claimant’s application which would render the board’s denial of the" applications an abuse of discretion and, accordingly, its decision must be upheld (e.g., Matter of Lu Core v. Hooker Electrochemical Co., 6 A D 2d 624; compare, e.g., Matter of Williams v. L & J Painting Corp., 15 A D 2d 837; Matter of Barrow v. Loon Lake Hotel, 3 A D 2d 783). Decisions filed June 24, 1970 and October 22, 1970 affirmed, with costs to respondents employer and carrier. Appeal from decision filed March 5, 1970 dismissed, without costs. Herlihy, P. J., Reynolds, Aulisi, Staley, Jr., and Sweeney, JJ., concur.