Claim of Del Gaudio v. Buffalo Wine Co.

Appellate Division of the Supreme Court of New York

Claim of Del Gaudio v. Buffalo Wine Co.

34 A.D.2d 1083, 311 N.Y.S.2d 947, 1970 N.Y. App. Div. LEXIS 4266

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

DecidedJune 30, 1970

StatusPublished

This text of 34 A.D.2d 1083 (Claim of Del Gaudio v. Buffalo Wine Co.) 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 Del Gaudio v. Buffalo Wine Co., 34 A.D.2d 1083, 311 N.Y.S.2d 947, 1970 N.Y. App. Div. LEXIS 4266 (N.Y. Ct. App. 1970).

Pincite

Opinion

Herlihy, P. J.

Appeal by the employer from a decision of the Workmen’s Compensation Board, filed October 24, 1969, which denied the employer reimbursement for monies paid to the claimant during a period of disability. The board has found that the claimant was entitled to receive disability benefits for a period of time when he was totally disabled from employment due to a coronary thrombosis. The appellant-employer attempts to question the validity of the award on this appeal. However, the insurance carrier did not appeal and thus, the only issue on this appeal is whether or not the appellant is entitled to reimbursement from the award for “wages” paid during the disability. The employer paid the sum of $212 per week to the claimant during his period of disability. However, this was a drawing account to be applied against commissions earned and, accordingly, was nothing more than a loan. The claimant did receive credits for commissions during this period of time, but it appears that this was a gratuitous benefit, the commissions actually being earned by eoemployees and voluntarily credited to the claimant. Under such circumstances the finding of the board that the claimant did not receive or earn wages for the period of disability must be affirmed and the appellant is not entitled to reimbursement. Decision affirmed, with costs to the Workmen’s Compensation Board. Herlihy, P. J., Reynolds, Aulisi, Staley, Jr. and Greenblott, JJ., concur in memorandum by Herlihy, P. J.

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Herlihy, P. J.

Appeal by the employer from a decision of the Workmen’s Compensation Board, filed October 24, 1969, which denied the employer reimbursement for monies paid to the claimant during a period of disability. The board has found that the claimant was entitled to receive disability benefits for a period of time when he was totally disabled from employment due to a coronary thrombosis. The appellant-employer attempts to question the validity of the award on this appeal. However, the insurance carrier did not appeal and thus, the only issue on this appeal is whether or not the appellant is entitled to reimbursement from the award for “wages” paid during the disability. The employer paid the sum of $212 per week to the claimant during his period of disability. However, this was a drawing account to be applied against commissions earned and, accordingly, was nothing more than a loan. The claimant did receive credits for commissions during this period of time, but it appears that this was a gratuitous benefit, the commissions actually being earned by eoemployees and voluntarily credited to the claimant. Under such circumstances the finding of the board that the claimant did not receive or earn wages for the period of disability must be affirmed and the appellant is not entitled to reimbursement. Decision affirmed, with costs to the Workmen’s Compensation Board. Herlihy, P. J., Reynolds, Aulisi, Staley, Jr. and Greenblott, JJ., concur in memorandum by Herlihy, P. J.

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Bluebook (online)

34 A.D.2d 1083, 311 N.Y.S.2d 947, 1970 N.Y. App. Div. LEXIS 4266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-del-gaudio-v-buffalo-wine-co-nyappdiv-1970.