Claim of Bauer v. Bauer's Restaurant

Appellate Division of the Supreme Court of New York

Claim of Bauer v. Bauer's Restaurant

26 A.D.2d 871, 273 N.Y.S.2d 999, 1966 N.Y. App. Div. LEXIS 3291

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 21, 1966

StatusPublished

This text of 26 A.D.2d 871 (Claim of Bauer v. Bauer's Restaurant) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Bauer v. Bauer's Restaurant, 26 A.D.2d 871, 273 N.Y.S.2d 999, 1966 N.Y. App. Div. LEXIS 3291 (N.Y. Ct. App. 1966).

Pincite

Opinion

Reynolds, J.

Appeal by the claimant-widow from a decision of the Workmen’s Compensation Board denying her death benefits on the ground that her claim was not filed within two years of her husband’s death as required by section 28 of the Workmen’s Compensation Law. The claim having been filed more than five years after her husband’s death, the sole issue raised is the propriety of the board’s determination that her payment of her husband’s funeral expenses did not also constitute an advance payment of compensation by her as his employer thus waiving the two-year filing requirement of section 28. This [872]*872determination is factual and thus if supported by substantial evidence must be sustained. There is in the instant record no evidence that claimant-widow paid the funeral expenses as an employer with recognition that there existed a claim or liability (Matter of Buxbaum v. Cumberland Provision, 14 A D 2d 425, app. dsmd. 12 N Y 2d 670; Matter of Lombardo v. Endicott Johnson Corp., 275 App. Div. 18), and thus the board properly concluded that the natural inference was that she paid “ the funeral bill as a widow, not as an alleged employer.” Decision affirmed, without costs. Gibson, P. J., Herlihy and Staley, Jr., JJ., concur; Taylor, J., not voting.

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Reynolds, J.

Appeal by the claimant-widow from a decision of the Workmen’s Compensation Board denying her death benefits on the ground that her claim was not filed within two years of her husband’s death as required by section 28 of the Workmen’s Compensation Law. The claim having been filed more than five years after her husband’s death, the sole issue raised is the propriety of the board’s determination that her payment of her husband’s funeral expenses did not also constitute an advance payment of compensation by her as his employer thus waiving the two-year filing requirement of section 28. This [872]*872determination is factual and thus if supported by substantial evidence must be sustained. There is in the instant record no evidence that claimant-widow paid the funeral expenses as an employer with recognition that there existed a claim or liability (Matter of Buxbaum v. Cumberland Provision, 14 A D 2d 425, app. dsmd. 12 N Y 2d 670; Matter of Lombardo v. Endicott Johnson Corp., 275 App. Div. 18), and thus the board properly concluded that the natural inference was that she paid “ the funeral bill as a widow, not as an alleged employer.” Decision affirmed, without costs. Gibson, P. J., Herlihy and Staley, Jr., JJ., concur; Taylor, J., not voting.

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Bluebook (online)

26 A.D.2d 871, 273 N.Y.S.2d 999, 1966 N.Y. App. Div. LEXIS 3291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-bauer-v-bauers-restaurant-nyappdiv-1966.