Claim of McFadden v. Duo Plumbing & Heating Corp.

73 A.D.2d 739, 423 N.Y.S.2d 279, 1979 N.Y. App. Div. LEXIS 14815

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1979
• Status: Published

Opinion

— Appeal from a decision of the Workers’ Compensation Board, filed November 15, 1978. On June 3, 1975, Moses Abram died as a result of an automobile accident while in the employ of Duo Plumbing & Heating Corp. We are concerned on this appeal with the propriety of an award of death benefits to four alleged illegitimate children of decedent ranging in ages from 5 to 12 years of age. The board found, based on a letter from the principal of P. S. 167, the joint income tax return of decedent for the year 1973, and the testimony of decedent’s brother and the mother of the children, that all four children were acknowledged out-of-wedlock dependent children of decedent entitled to death benefits. Considering the record in its entirety, there is substantial evidence to support the board’s decision that the claimants were acknowledged illegitimate children of decedent. It should also be noted that acknowledged illegitimate children of tender years are presumed to be dependent upon the father (Matter of Hunter v Good-stein Bros., 2 AD2d 387). Furthermore, the record established affirmative proof that the claimants were dependent on decedent, their father. Accordingly, the decision should be affirmed (Matter of Herring v Great Kills Moving & Stor., 7 AD2d 797, mot for lv to app den 6 NY2d 705). Decision affirmed, with costs to the Workers’ Compensation Board against the employer and its insurance carrier. Sweeney, J. P., Main, Mikoll and Herlihy, JJ., concur.