Opinion
518917.
04-09-2015
In the Matter of the Claim of Maria BELLANTONI, Respondent, v. CITY OF NEW YORK SCHOOL FOOD AND NUTRITION SERVICES, Appellant. Workers' Compensation Board, Respondent.
Zachary W. Carter, Corporation Counsel, New York City (Andrew Tran of counsel), for appellant. Grey & Grey, LLP, Farmingdale (Kevin Plant of counsel), for Maria Bellantoni, respondent. Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), for Workers' Compensation Board, respondent.
Zachary W. Carter, Corporation Counsel, New York City (Andrew Tran of counsel), for appellant.
Grey & Grey, LLP, Farmingdale (Kevin Plant of counsel), for Maria Bellantoni, respondent.
Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), for Workers' Compensation Board, respondent.
Before: PETERS, P.J., LAHTINEN, GARRY and LYNCH, JJ.
Opinion
LYNCH, J.
Appeal from a decision of the Workers' Compensation Board, filed July 22, 2013, which ruled that the employer waived the right to raise the defense that claimant provided untimely notice of her injury.
Claimant applied for workers' compensation benefits in 2011, alleging that she suffered a work-related injury to her shoulder in 2009. The employer controverted the claim, but neither filed a timely prehearing conference statement as required by Workers' Compensation Law § 25(2–a)(d) nor an affidavit demonstrating due diligence and good cause for the delay (see also 12 NYCRR 300.38 [f][1] ). As a result, the Workers' Compensation Board ultimately determined that the employer waived its defenses to the claim pursuant to 12 NYCRR 300.38(f)(4) (see Matter of Quagliata v. Starbucks Coffee, 82 A.D.3d 1321, 1322, 918 N.Y.S.2d 629 [2011], lv. denied 17 N.Y.3d 703, 2011 WL 2314417 [2011] ; Matter of Smith v. Albany County Sheriff's Dept., 82 A.D.3d 1334, 1335, 918 N.Y.S.2d 245 [2011], lv. denied 17 N.Y.3d 770, 929 N.Y.S.2d 74, 952 N.E.2d 1067 [2011] ). The employer now appeals.
“Inasmuch as the Board's decision was interlocutory and did not dispose of all of the substantive issues or reach a potentially dispositive threshold legal issue, it is not appealable” (Matter of Lewis v. Stewart's Mktg. Corp., 122 A.D.3d 1048, 1049, 996 N.Y.S.2d 762 [2014] [internal quotation marks and citations omitted]; see Matter of Zaldivar v. SNS Org., 119 A.D.3d 1134, 1135, 989 N.Y.S.2d 622 [2014] ). We decline to review the Board's decision here, as it continued the case for a determination by a Workers' Compensation Law Judge as to whether claimant has presented sufficient evidence to establish a claim, and the employer may appeal, if necessary, from the Board's final decision on this issue (see Matter of Ortiz v. Martin Viette Nurseries, Inc., 82 A.D.3d 1480, 1480–1481, 918 N.Y.S.2d 759 [2011] ; Matter of Ogbuagu v. Ngbadi, 61 A.D.3d 1198, 1199, 876 N.Y.S.2d 769 [2009] ). Accordingly, the appeal is dismissed.
ORDERED that the appeal is dismissed, without costs.
PETERS, P.J., LAHTINEN and GARRY, JJ., concur.