Matter of Turi v. Five L. Enterprises, Inc.

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 19, 2016 521988
________________________________
In the Matter of the Claim of
JOANNE TURI,
Appellant,
v
FIVE L. ENTERPRISES, INC., MEMORANDUM AND ORDER
et al.,
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: April 22, 2016
Before: Garry, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.
__________
Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel),
for appellant.
Cherry, Edson & Kelly, LLP, Tarrytown (James U. Cavanagh of
counsel), for Five L. Enterprises, Inc. and another, respondents.
__________
Egan Jr., J.
Appeal from a decision of the Workers' Compensation Board,
filed March 3, 2015, which, among other things, ruled that
claimant lacked standing to request the imposition of a penalty
for the failure of the workers' compensation carrier to make a
timely deposit into the Aggregate Trust Fund.
A workers' compensation claim was established and death
benefits were awarded following the death of claimant's spouse in
a 1993 work-related accident. Based upon the actuarial
-2- 521988
computation of the present value of the award, the employer's
workers' compensation carrier was directed to deposit $270,835.78
into the Aggregate Trust Fund (hereafter ATF) pursuant to
Workers' Compensation Law § 27. Although the carrier continually
made compensation payments to claimant and decedent's dependents,
no deposit was made into the ATF. As is relevant to this appeal,
claimant maintained that the carrier's lack of deposit into the
ATF amounted to an untimely payment of compensation requiring
that a 20% penalty be imposed in accordance with Workers'
Compensation Law § 25 (3) (f). The Workers' Compensation Board
ultimately found, among other things, that claimant was not an
aggrieved party with standing to request the imposition of a
penalty for the carrier's failure to make a timely deposit into
the ATF. Claimant appeals.
We affirm. Any untimely deposit by a carrier into the ATF
and resulting penalty and/or interest to be imposed is governed
by the Board's rules and regulations (see 12 NYCRR 393.2) and is
separate and apart from any penalty imposed pursuant to Workers'
Compensation Law § 25 (3) (f) for late payment of compensation to
a claimant. "The issue of late payment to the [ATF] is an issue
between the [ATF] and the carrier and is of no consequence to
. . . claimant" (Employer: Niagara Mohawk, 2010 WL 2817807, *2,
2010 NY Wrk Comp LEXIS 132, *4 [WCB No. 5021 5237, July 15,
2010]; accord Employer: Walmart, 2006 WL 907700, *1 [WCB No. 6950
4297, Apr. 3, 2006]). As such, the Board properly found that
claimant lacked standing.
Garry, J.P., Lynch, Clark and Mulvey, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court