Opinion
527924
10-31-2019
In the Matter of Joanne FULLER–ASTARITA, Appellant, v. ABA TRANSPORTATION HOLDING COMPANY, Respondent. Workers' Compensation Board Respondent.
Sullivan Papain Block McGrath & Cannavo PC, New York City (Brian J. Shoot of counsel), for appellant. Stewart, Greenblatt, Manning & Baez, Syosset (Thomas A. Lumpkin of counsel), for ABA Transportation Holding Company, respondent. Letitia James, Attorney General, New York City (Steven Segall of counsel), for Workers' Compensation Board, respondent.
Sullivan Papain Block McGrath & Cannavo PC, New York City (Brian J. Shoot of counsel), for appellant.
Stewart, Greenblatt, Manning & Baez, Syosset (Thomas A. Lumpkin of counsel), for ABA Transportation Holding Company, respondent.
Letitia James, Attorney General, New York City (Steven Segall of counsel), for Workers' Compensation Board, respondent.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.P. Appeal from a decision of the Workers' Compensation Board, filed April 16, 2018, which ruled, among other things, that Joanne Fuller–Astarita failed to comply with 12 NYCRR 300.13(b) and denied review of a decision by the Workers' Compensation Law Judge.
On July 5, 2016, Joanne Fuller–Astarita, a bus driver's assistant, was walking near Railroad Avenue in the Town of Huntington, Suffolk County when she was hit by a bus owned by her employer, sustaining injuries to her back, pelvis and abdomen. Although Fuller–Astarita did not file a claim for workers' compensation benefits regarding this incident, her employer did and, by decision filed July 11, 2017, a Workers' Compensation Law Judge (hereinafter WCLJ) determined that she had, in fact, sustained work-related injuries to her back, pelvis and abdomen, prompting her counsel to submit an RB–89 application for review by the Workers' Compensation Board. In response to question 12 on the application regarding the "Basis of Appeal," however, Fuller–Astarita's counsel wrote, "Please see attached legal brief." Thereafter, by decision filed April 16, 2018, the Board, among other things, denied the application for review, finding that the application was not filled out completely as required by 12 NYCRR 300.13(b)(1). Fuller–Astarita's subsequent application for reconsideration and/or full Board review was denied. Fuller–Astarita appeals from the April 16, 2018 Board decision.
Fuller–Astarita denies that the subject accident was work-related because she was laid off from employment as of June 24, 2016 and, instead, alleges that the employer and its workers' compensation carrier only accepted liability for the accident "as a means of shielding [themselves] from civil liability."
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Contrary to Fuller–Astarita's contention, the Board's decision denying the application for review did not address the merits of the WCLJ's decision, but was limited to her failure to follow the Board's procedural rules and regulations. As such, Fuller–Astarita's arguments in her appellate brief regarding the underlying merits of the WCLJ's decision are not properly before us (see generally Matter of Brasher v. Sam Dell's Dodge Corp., 159 A.D.3d 1234, 1235, 70 N.Y.S.3d 400 [2018], appeal dismissed 32 N.Y.3d 1012, 86 N.Y.S.3d 420, 111 N.E.3d 314 [2018] ; Matter of Scalo v. C.D. Perry & Sons, 129 A.D.3d 1431, 1432, 12 N.Y.S.3d 373 [2015] ; Matter of Bolden [Commissioner of Labor], 65 A.D.3d 727, 728, 884 N.Y.S.2d 280 [2009] ). Moreover, having failed to raise any issue in her appellate brief regarding the Board's denial of the application for review, she has abandoned any issue with regard thereto (see Matter of Lashlee v. Pepsi–Cola Newburgh Bottling, 301 A.D.2d 879, 880, 754 N.Y.S.2d 102 [2003] ; Matter of Gardner v. Structure Tone of N.Y., 272 A.D.2d 794, 795, 708 N.Y.S.2d 729 [2000] ). Fuller–Astarita's belated attempt to raise such issue for the first time in her reply brief is not properly before us (see Matter of Jay's Distribs., Inc. v. Boone, 148 A.D.3d 1237, 1241, 48 N.Y.S.3d 551 [2017], lv denied 29 N.Y.3d 918, 2017 WL 4015519 [2017] ; Giblin v. Pine Ridge Log Homes, Inc., 42 A.D.3d 705, 706, 840 N.Y.S.2d 196 [2007] ).
Lynch, Clark, Mulvey and Pritzker, JJ., concur.
ORDERED that the decision is affirmed, without costs.