Opinion
June 28, 1967
MEMORANDUM BY THE COURT. Employer and carrier appeal from a decision of the board, filed February 18, 1966, which held the carrier, rather than the Special Fund, liable for compensation benefits admittedly due claimant. The disposition made by the Referee on October 27, 1958 did not close the case within the contemplation of subdivision 1 of section 25-a, the direction being "Closed till such time as a deficiency arises". The Referee's use of the terms "closed" and "reopening" is not conclusive. In Matter of Casey v. Hinkle Iron Works ( 299 N.Y. 382, 385) the court observed that liability is assessable against the Special Fund only when the case is closed and subsequently reopened by a fresh application, and then stated: "For the purpose of section 25-a, a case is closed when it has been referred to the abeyance file because no further proceedings were foreseen." Decision affirmed, with costs to respondent Special Fund. Herlihy, J.P., Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.