Claim of Lopez v. New York Auction Service

Appellate Division of the Supreme Court of New York

Claim of Lopez v. New York Auction Service

43 A.D.2d 606, 348 N.Y.S.2d 594, 1973 N.Y. App. Div. LEXIS 3249

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

DecidedNovember 1, 1973

StatusPublished

This text of 43 A.D.2d 606 (Claim of Lopez v. New York Auction Service) 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 Lopez v. New York Auction Service, 43 A.D.2d 606, 348 N.Y.S.2d 594, 1973 N.Y. App. Div. LEXIS 3249 (N.Y. Ct. App. 1973).

Pincite

Opinion

Appeal by the employer and its insurance carrier from a decision of the Workmen’s Compensation Board which discharged the respondent Special Fund for Reopened Cases from liability. Whether or not there has been the closing of a case for the purposes of section 25-a of the Workmen’s Compensation Law is a determination of fact, and thus if the board’s decision is supported by substantial evidence, it cannot be disturbed (Matter of Scalesse v. Printing Adv. Gorp., Enterprises Print. Division, 30 N Y 2d 234). And as the Court of Appeals noted in Scalesse (p. 237) “the mere statement by a Referee that a case is ' closed ’ does not necessarily render it so within the meaning of section 25-a * » unless it can be said that further proceedings were not contemplated.” In the instant case, involving an injury to claimant’s knee, we cannot say that the board could not properly find that the closing of the case on May 4, 1965 “until claimant may be present to be examined by the State Board” was not a “ true closing ”. Rather, it is clear from the record that further proceedings were definitely contemplated when claimant returned from Puerto Rico and could be examined by a member of the State Board to determine the schedule loss, if any. Decision affirmed, with costs to the Special Fund for Reopened Cases against the State Insurance Fund. Herlihy, P. J., Staley, Jr., Cooke, Main and Reynolds, JJ., concur.

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Appeal by the employer and its insurance carrier from a decision of the Workmen’s Compensation Board which discharged the respondent Special Fund for Reopened Cases from liability. Whether or not there has been the closing of a case for the purposes of section 25-a of the Workmen’s Compensation Law is a determination of fact, and thus if the board’s decision is supported by substantial evidence, it cannot be disturbed (Matter of Scalesse v. Printing Adv. Gorp., Enterprises Print. Division, 30 N Y 2d 234). And as the Court of Appeals noted in Scalesse (p. 237) “the mere statement by a Referee that a case is ' closed ’ does not necessarily render it so within the meaning of section 25-a * » unless it can be said that further proceedings were not contemplated.” In the instant case, involving an injury to claimant’s knee, we cannot say that the board could not properly find that the closing of the case on May 4, 1965 “until claimant may be present to be examined by the State Board” was not a “ true closing ”. Rather, it is clear from the record that further proceedings were definitely contemplated when claimant returned from Puerto Rico and could be examined by a member of the State Board to determine the schedule loss, if any. Decision affirmed, with costs to the Special Fund for Reopened Cases against the State Insurance Fund. Herlihy, P. J., Staley, Jr., Cooke, Main and Reynolds, JJ., concur.

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Bluebook (online)

43 A.D.2d 606, 348 N.Y.S.2d 594, 1973 N.Y. App. Div. LEXIS 3249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-lopez-v-new-york-auction-service-nyappdiv-1973.