Matter of Hart v. Perkins

8 Citing cases

  1. Matter of Surdi v. Premium Coal and Oil Co.

    71 A.D.2d 964 (N.Y. App. Div. 1979)   Cited 1 times

    The approval by the board of an application for a nonschedule adjustment permitting the payment of a lump sum must be founded on conclusions that the claimant's future earning capacity and continuance of disability cannot be ascertained with reasonable certainty, and that such action is fair and in his best interest (Workers' Compensation Law, § 15, subd 5-b). In this case, the board has further determined, for the purpose of a penalty, that compliance with its approval does not fully constitute "payments of compensation according to the terms of the award" (Workers' Compensation Law, § 25, subd 3, par [c]). Although we are not unmindful of certain judicial expressions tending to a contrary result (see Matter of Hart v. Perkins, 258 N.Y. 66; Matter of Hart v. Perkins, 258 N.Y. 61; Matter of Badarie v. Charles B. Gols, Inc., 25 A.D.2d 79, mot for lv to app den 17 N.Y.2d 423; Matter of Dodson v. Healy Co., 275 App. Div. 130, mot for lv to app den 300 N.Y. 760), none of those opinions directly addressed the quoted language, whereas here it is the board which has interpreted the applicable statutory provision. Had the settlement not been approved, it is well to remember that the "award" would have remained one of reduced earnings at the weekly rate of $56.77.

  2. Candado Stevedoring Corporation v. Lowe

    85 F.2d 119 (2d Cir. 1936)   Cited 8 times

    In Twine v. Locke, 68 F.2d 712, 714, we sustained the penalty where the employer had failed to pay an award within ten days though he had thirty days within which to appeal from the Commissioner and made the payment within the latter period. A similar conclusion was reached by the New York Court of Appeals in dealing with the Workmen's Compensation Law of that state in Hart v. Perkins, 258 N.Y. 66, 179 N.E. 261. We think that the clause of section 14(f) which imposes the penalty "unless review * * * is had as provided in section 21 [section 921 of this chapter]" makes the securing of a temporary injunction, at least, the only exception which will obviate the imposition of the penalty.

  3. Twine v. Locke

    68 F.2d 712 (2d Cir. 1934)   Cited 14 times
    In Twine v. Locke, 68 F.2d 712, 714, we sustained the penalty where the employer had failed to pay an award within ten days though he had thirty days within which to appeal from the Commissioner and made the payment within the latter period.

    Moreover, this seems to be the policy of the New York Workmen's Compensation Law (Consol. Laws c. 67) upon which the federal statute was modeled. The case of In re Hart v. Perkins, 258 N.Y. 66, 179 N.E. 261, supports this view. There an award was made July 16, 1928, and paid August 14th. Thus it was paid before the expiration of the thirty days permitted for appeal by section 23 of the Workmen's Compensation Law, as amended by Laws 1928, c. 754, § 6. The court nevertheless awarded a 20 per cent. penalty under section 25, which imposes such penalty for failure of the employer "to make payments of compensation according to the terms of the award within ten days thereafter, except in case of an appeal."

  4. Lockett v. Smith

    72 So. 2d 817 (Fla. 1954)   Cited 15 times
    In Lockett v. Smith, Fla., 72 So.2d 817, at 819, the claimant obtained the 20% penalty before the Industrial Commission but was denied attorney's fees.

    (Emphasis added.) This "penalty" was imposed and, of course, called a "penalty" in Hart v. Perkins, 258 N.Y. 66, 179 N.E. 261, which was cited as persuasive in construing the comparable section of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 914(f), in Twine v. Locke, 2 Cir., 68 F.2d 712, cited by respondent. The language of the section of the federal statute last cited is substantially identical with that of our own statute, and in the Twine case was said to have been based upon the New York Act. Subsequent federal cases, e.g., Arrow Stevedore Co. v. Pillsbury, 9 Cir., 88 F.2d 446, and Travelers Insurance Co. v. Branham, D.C., 65 F. Supp. 512, in mentioning the amount of Longshoremen's Act makes payable for delinquency have called it a "penalty".

  5. Matter of Devito v. Imbriano

    39 A.D.2d 796 (N.Y. App. Div. 1972)   Cited 2 times

    Section 25 (subd. 3, par. [c]) of the Workmen's Compensation Law provides that if the employer or the carrier fails to pay the award within 10 days, a penalty of 20% of the unpaid award shall be imposed. The purpose of the amendment to section 25 is to insure that the injured employee will receive prompt payment of the award, and such penalty provisions have been upheld as valid. ( Matter of Hart v. Perkins, 258 N.Y. 66; Matter of Beckman v. Piels Brewery, 28 A.D.2d 1159; Matter of Urchenko v. City of New York, 25 A.D.2d 804.) Here, the assessment of the penalty was proper.

  6. Matter of Beckman v. Brewery

    28 A.D.2d 1159 (N.Y. App. Div. 1967)

    The purpose of section 25 Work. Comp. of the Workmen's Compensation Law is to insure that the injured employee promptly receives payment of benefits under the law to the extent conceded ( Matter of Urchenko v. City of New York, 25 A.D.2d 804). The penalty was properly assessed. ( Matter of Hart v. Perkins, 258 N.Y. 66.) Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gabrielli, J.

  7. Matter of Urchenko v. City of New York

    25 A.D.2d 804 (N.Y. App. Div. 1966)   Cited 3 times

    The board affirmed the Referee, and shortly thereafter claimant filed a request for a penalty pursuant to section 25 (subd. 3, par. [c]) on the theory that appellant had appealed only as to the difference between an award for loss to an arm and an award for loss to a hand so that it should have at least made payment for the schedule amount for a hand-loss immediately after the Referee decision. The board assessed the penalty, and we believe correctly so. Where an appeal is taken from part of an award a penalty is properly imposed for nonpayment of the undisputed amount ( Matter of Hart v. Perkins, 258 N.Y. 66), and while appellant asserts that it did not concede that an award for at least loss of use of the hand was proper, the board could clearly find that appellant's position during the hearing before the Referee, in its application for review and on its argument before the board belies such a contention. There is no suggestion that the appellant did not appeal to the board in good faith.

  8. Weingarten v. Cohen

    275 App. Div. 253 (N.Y. App. Div. 1949)   Cited 3 times
    In Weingarten v Cohen (275 App. Div. 253, affd 300 N.Y. 528), the paper was served by an administrative agency and no judicial action was pending.

    By the express terms of the statute in question I think the construction about to be made is unwarranted. Matter of Hart v. Perkins ( 258 N.Y. 61, and the companion case, 258 N.Y. 66) held only that when an insurance carrier failed to pay within ten days after the making of an award the claimant was entitled to the prescribed penalty. Matter of Bolton v. City of New York ( 264 App. Div. 964) holds only that section 164 of the Civil Practice Act, granting three additional days to serve when service is made by mail, is applicable. It does not touch upon the main issue here, i.e., whether the six months' Statute of Limitations, commences from making of award or from service of notice of same.