Matter of Estwick v. Risk Management Planning , 998 N.Y.S.2d 674 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 29, 2015 519215
________________________________
In the Matter of the Claim of
MAUREEN ESTWICK,
Appellant,
v
RISK MANAGEMENT PLANNING et al., MEMORANDUM AND ORDER
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: December 16, 2014
Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.
__________
Rella & Associates, PC, Sleepy Hollow (Dionisios Georgatos
of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.
__________
Lahtinen, J.P.
Appeal from a decision of the Workers' Compensation Board,
filed August 16, 2013, which, among other things, assessed a
monetary penalty against claimant's counsel pursuant to Workers'
Compensation Law § 114–a (3) (ii).
Claimant, who resides in Brooklyn, sustained a compensable
injury involving her right shoulder while working for her
employer in Brooklyn. Claimant retained counsel, who submitted
to the Workers' Compensation Board, among other things, a request
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by claimant that the venue of any hearings be held in the City of
White Plains, Westchester County on the ground that it was the
"most efficient" and would limit the amount of time lost from
work. A Workers' Compensation Law Judge (hereinafter WCLJ)
denied the request, finding that the change of venue application
was made without reasonable ground, and assessed penalties of
$250 against claimant's counsel under Workers' Compensation Law
§ 114–a (3) (i) and (ii). The Board modified the WCLJ's decision
by rescinding the penalty assessment pursuant to Workers'
Compensation Law § 114–a (3) (i), finding that, pursuant to that
subsection, such penalty can only be assessed against a party,
not a party's counsel. However, the Board found the penalty of
counsel fees under section 114–a (3) (ii) to be warranted and,
given the fact that counsel appealed the WCLJ's decision
asserting arguments regarding the venue request which counsel was
aware were improper or had been previously rejected by the Board,
increased the assessment against counsel to $500. Claimant
appeals.1
We affirm. We have repeatedly upheld the imposition of a
penalty of reasonable counsel fees pursuant to Workers'
Compensation Law § 114–a (3) (ii) when, as here, the record
contains substantial evidence that a venue request was made
without a reasonable basis (see Matter of Maiorano v Alman
Plumbing, 119 AD3d 1254, 1254 [2014]; Matter of Mejia v Camabo
Indus., Inc., 117 AD3d 1362, 1363 [2014]; Matter of Toledo v
Administration for Children Servs., 112 AD3d 1209, 1210 [2013];
Matter of Wolfe v New York City Dept. of Corr., 112 AD3d 1197,
1
Given that the only issue on this appeal relates to the
assessment against counsel, "counsel is the party in interest
pursuant to Workers' Compensation Law § 23 and 'should have filed
the notice of appeal on [his] own behalf'" (Matter of Wolfe v New
York City Dept. of Corr., 112 AD3d 1197, 1198 [2013], quoting
Matter of Banton v New York City Dept. of Corr., 112 AD3d 1195,
1196 n [2013]). Given the absence of any allegation of
prejudice, we will disregard that defect and treat the appeal as
having been taken by counsel (see CPLR 2001; Matter of Wolfe v
New York City Dept. of Corr., 112 AD3d at 1198).
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1198 [2013]; Matter of Banton v New York City Dept. of Corr., 112
AD3d 1195, 1196 [2013]). The record reflects that there was no
legitimate basis for seeking the venue change and the Board had
previously rejected several similarly-worded venue change
requests by counsel. Under these circumstances, the Board did
not exceed its authority in assessing a penalty against counsel
based upon the filings of the request to change venue and the
appeal to the Board without reasonable grounds (see Workers'
Compensation Law § 114-a [3] [ii]; see also Workers' Compensation
Law §§ 23, 142), and its decision will not be disturbed (see
Matter of Wolfe v New York City Dept. of Corr., 112 AD3d at 1198;
Matter of Banton v New York City Dept. of Corr., 112 AD3d at
1196-1197).
McCarthy, Rose, Lynch and Clark, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court