Matter of Vincent v. Geneva Pizza, Inc.

Full title: In the Matter of the Claim of JOHN H. VINCENT, Appellant, v. GENEVA PIZZA…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Sep 23, 1993

196 A.D.2d 917 (N.Y. App. Div. 1993)

602 N.Y.S.2d 220

Opinion

September 23, 1993

Appeal from the Workers' Compensation Board.

There is support in the record for the finding of the Workers' Compensation Board that the carrier's challenge to the claim was based upon the theory that an employer/employee relationship does not exist. Such a challenge does not estop the carrier from raising the issue of the failure of claimant to obtain the consent of the carrier prior to the settlement of a third-party action as required by Workers' Compensation Law § 29 (5) (see, Matter of Daly v Daly Constr. Corp., 136 A.D.2d 798, lv denied 72 N.Y.2d 807). Given that claimant failed to timely seek such consent here, the Board's finding that claimant is barred from further payments of compensation is affirmed.

Weiss, P.J., Mikoll, Yesawich Jr. and Crew III, JJ., concur. Ordered that the decision is affirmed, without costs.