Claim of Boccia v. City of New York

Appellate Division of the Supreme Court of New York

Claim of Boccia v. City of New York

24 A.D.2d 727, 263 N.Y.S.2d 59, 1965 N.Y. App. Div. LEXIS 3389

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

DecidedSeptember 21, 1965

StatusPublished

Cited by1 cases

This text of 24 A.D.2d 727 (Claim of Boccia v. City of New York) 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 Boccia v. City of New York, 24 A.D.2d 727, 263 N.Y.S.2d 59, 1965 N.Y. App. Div. LEXIS 3389 (N.Y. Ct. App. 1965).

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Opinion

Per Curiam.

Motion for reargument granted. Respondent board’s brief seems to concede that the issues concerning substantial evidence of an occupational disease and hearsay evidence were properly before us; and, upon reargument, we examine the merits. On the first issue we find that the medical evidence supplied by Dr. Sherman supports the board finding that the occupational strains to which decedent was subjected provided a competent producing cause of the bilateral hernia which led to his death. Dr. Sherman testified only to a possible predisposition and not to an actual pre-existing hernia (Matter of Zecca v. Levisohn & Co., 12 A D 2d 676, mot. for Iv. to app. den. 9 N Y 2d 610; Matter of Nardo v. [728]*728Rheinstein Constr. Co., 7 A D 2d 689, mot. for lv. to app. den. 5 N Y 2d 709). Since this evidence indicates that the occupational strains produced the hernias and did not merely aggravate a pre-existing hernia, an occupational disease is adequately established (Matter of Roettinger v. Great Atlantic & Pacific Tea Co., 17 A D 2d 76, affd. 13 N Y 2d 1102). As to the second issue, the board was free to re-evaluate decedent’s own testimony as to his duties given at the prior hearings on the disability claim in light of the additional testimony of others taken on the death claim, all of which was by no means derived from statements to them by decedent, so that, upon all of both records, it cannot be said that the evidence is based entirely on hearsay or that hearsay was corroborated merely by other hearsay. Accordingly, we adhere to our prior determination and the decision of the Workmen’s Compensation Board is affirmed, with costs. Gibson, P. J., Herlihy, Reynolds, Taylor and Hamm, JJ., concur.

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Per Curiam.

Motion for reargument granted. Respondent board’s brief seems to concede that the issues concerning substantial evidence of an occupational disease and hearsay evidence were properly before us; and, upon reargument, we examine the merits. On the first issue we find that the medical evidence supplied by Dr. Sherman supports the board finding that the occupational strains to which decedent was subjected provided a competent producing cause of the bilateral hernia which led to his death. Dr. Sherman testified only to a possible predisposition and not to an actual pre-existing hernia (Matter of Zecca v. Levisohn & Co., 12 A D 2d 676, mot. for Iv. to app. den. 9 N Y 2d 610; Matter of Nardo v. [728]*728Rheinstein Constr. Co., 7 A D 2d 689, mot. for lv. to app. den. 5 N Y 2d 709). Since this evidence indicates that the occupational strains produced the hernias and did not merely aggravate a pre-existing hernia, an occupational disease is adequately established (Matter of Roettinger v. Great Atlantic & Pacific Tea Co., 17 A D 2d 76, affd. 13 N Y 2d 1102). As to the second issue, the board was free to re-evaluate decedent’s own testimony as to his duties given at the prior hearings on the disability claim in light of the additional testimony of others taken on the death claim, all of which was by no means derived from statements to them by decedent, so that, upon all of both records, it cannot be said that the evidence is based entirely on hearsay or that hearsay was corroborated merely by other hearsay. Accordingly, we adhere to our prior determination and the decision of the Workmen’s Compensation Board is affirmed, with costs. Gibson, P. J., Herlihy, Reynolds, Taylor and Hamm, JJ., concur.

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Bluebook (online)

24 A.D.2d 727, 263 N.Y.S.2d 59, 1965 N.Y. App. Div. LEXIS 3389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-boccia-v-city-of-new-york-nyappdiv-1965.

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