Matter of Alamin v. Down Town Taxi, Inc. , 34 N.Y.S.3d 794 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 21, 2016 520147
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In the Matter of the Claim of
HASSAN ALAMIN,
Appellant,
v
DOWN TOWN TAXI, INC., et al., MEMORANDUM AND ORDER
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
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Calendar Date: May 31, 2016
Before: Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.
__________
Hassan Alamin, New York City, appellant pro se.
Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe
of counsel), for Down Town Taxi, Inc. and another, respondents.
__________
Lahtinen, J.P.
Appeals (1) from a decision of a Workers' Compensation Law
Judge, filed January 11, 2013, which, among other things, awarded
claimant certain workers' compensation benefits from February 11,
2008 to October 26, 2009, (2) from a decision of the Workers'
Compensation Board, filed January 3, 2014, which, among other
things, ruled that claimant had no further causally related
disability after November 20, 2008, and (3) from a decision of
said Board, filed March 28, 2014, which denied claimant's request
for reconsideration and/or full Board review.
Claimant, a taxi driver, sustained injuries to his neck and
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back in a February 2008 motor vehicle accident that occurred
during the course of his employment with Down Town Taxi, Inc.
His claim for workers' compensation benefits was established in
October 2008. In a January 11, 2013 reserved decision, a
Workers' Compensation Law Judge (hereinafter WCLJ) awarded
claimant benefits at a weekly rate of $166.67 from February 11,
2008 to November 20, 2008 and, finding that claimant had a
further causally related moderate disability subsequent to
November 20, 2008, awarded claimant benefits at a weekly rate of
$100 from that date to October 26, 2009, the date on which the
WCLJ found that claimant first refused to attend an independent
medical examination. Upon review, the Workers' Compensation
Board, in a decision filed January 3, 2014, rescinded awards
after November 20, 2008, finding that claimant had no further
causally related disability as of that date. Claimant
acknowledged receipt of such decision on January 10, 2014, and
his subsequent request for reconsideration and/or full Board
review was denied on March 28, 2014. By notice of appeal dated
March 31, 2014, claimant appeals from the WCLJ's January 2013
decision and the Board's decisions filed in January 2014 and
March 2014.
Claimant's appeal from the WCLJ's January 2013 decision is
dismissed inasmuch as an appeal from a WCLJ decision must be
taken to the Board, and "no direct appeal to this Court lies from
a decision of a WCLJ" (Matter of Quagliata v Starbucks Coffee, 82
AD3d 1321, 1322 n [2011], lv denied 17 NY3d 703 [2011]; see
Workers' Compensation Law § 23; Matter of Romano v New York City
Dept. of Corrections, 305 AD2d 872, 873 [2003], appeal dismissed
1 NY3d 544 [2003]). The appeal from the Board's January 2014
decision must also be dismissed because the notice of appeal was
not filed within 30 days of claimant's receipt of such decision
(see Workers' Compensation Law § 23), and "a request for full
Board review does not toll the statutory time period within which
to file an appeal, and an appeal from a denial of a request for
reconsideration does not bring up for review the merits of the
underlying decision" (Matter of Dukes v Capitol Formation, 213
AD2d 756, 756-757 [1995] [internal quotation marks and citations
omitted], lv dismissed 86 NY2d 810 [1995], appeal dismissed 87
NY2d 891 [1995]; see Matter of Shell v Poughkeepsie Hous. Auth.,
276 AD2d 843, 845 [2000], lv dismissed 96 NY2d 731 [2001]).
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Accordingly, the only timely appeal properly before us is from
the Board's March 2014 decision denying reconsideration and/or
full Board review, and, as such, "our review is limited to
whether the Board's denial of the application was arbitrary and
capricious or otherwise constituted an abuse of discretion"
(Matter of Woods v New York State Thruway Auth., 93 AD3d 1050,
1051 [2012], lv dismissed 19 NY3d 1086 [2012]). Claimant failed
to set forth relevant newly discovered evidence, demonstrate a
pertinent material change in condition or show that the Board
improperly failed to consider the germane issues and evidence
before it. We are thus unpersuaded that the Board abused its
discretion or acted arbitrarily in denying claimant's application
for reconsideration and/or full Board review (see e.g. Matter of
Regan v City of Hornell Police Dept., 124 AD3d 994, 997 [2015]).
The remaining issues are academic or without merit.
Egan Jr., Lynch, Devine and Mulvey, JJ., concur.
ORDERED that the appeals from the decisions filed January
11, 2013 and January 3, 2014 are dismissed, without costs.
ORDERED that the decision filed March 28, 2014 is affirmed,
without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court