State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 13, 2014 518261
________________________________
In the Matter of the Claim of
JOSE BONILLA,
Respondent,
v
COUNTRY ROTISSERIE OF
RIVERHEAD, MEMORANDUM AND ORDER
Appellant,
and
ROCHDALE INSURANCE COMPANY,
Respondent.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: October 16, 2014
Before: Lahtinen, J.P., Garry, Egan Jr., Lynch and Devine, JJ.
__________
Molander & Associates, Bohemia (Garth Molander of counsel),
for appellant.
Stewart Greenblatt Manning & Baez, Syosset (Robert W.
Manning of counsel), for Rochdale Insurance Company, respondent.
__________
Lahtinen, J.P.
Appeal from a decision of the Workers' Compensation Board,
filed March 14, 2013, which ruled, among other things, that the
employer's workers' compensation policy was properly canceled.
-2- 518261
In November 2010, claimant was injured and submitted a
claim for workers' compensation benefits. The case was
controverted by the workers' compensation carrier on the ground
that the employer's policy had been canceled in August 2010 due
to a failure of the employer to pay the premiums. A Workers'
Compensation Law Judge (hereinafter WCLJ) determined that the
policy had not been properly canceled due to the carrier's
failure to comply with the notice requirements of Workers'
Compensation Law § 54 (5). The carrier submitted an application
and a supplemental application for full Workers' Compensation
Board review. The Board thereafter reversed the WCLJ's
determination and found, among other things, that the policy had
been properly canceled and that the employer was uninsured at the
time of claimant's injury. The employer now appeals.
To cancel a workers' compensation policy, a carrier must
comply with Workers' Compensation Law § 54 (5), which requires,
among other things, that written notice of cancellation be served
on the employer (see Matter of Estes v Metropolitan Warehouse,
Inc., 50 AD3d 1341, 1342 [2008]; Matter of Rue v Northeast Timber
Erectors, 289 AD2d 787, 788 [2001], lv dismissed 98 NY2d 671
[2002], lv denied 99 NY2d 503 [2002]). As relevant here, "[s]uch
notice shall be served on the employer . . . by sending it by
mail, by certified or registered letter, return receipt
requested, addressed to the employer at his, her or its last
known place of business; provided that, . . . if the employer be
a corporation then notice may be given to any agent or officer of
the corporation upon whom legal process may be served; and
further provided that an employer may designate any person or
entity at any address to receive such notice . . . and that
service of notice at the address so designated upon the person or
entity so designated by delivery or by mail, by certified or
registered letter, return receipt requested, shall satisfy the
notice requirement of this section" (Workers' Compensation Law
§ 54 [5]).
Here, the carrier sent the cancellation notice, by
certified mail, return receipt requested, to the employer's chief
executive officer, Rachel McAdam, at her home address on or about
August 4, 2010, with an effective date of cancellation of August
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18, 2010.1 McAdam's name and address are listed on the policy at
issue here as the employer's address and, pursuant to the terms
of the policy, any cancellation notice is to be mailed to McAdam
at that address. Notably, the employer had specifically
requested that its address in relation to its insurance policy be
changed from its place of business to McAdam's address in an
endorsement to its original policy with the carrier's
predecessor, and there is no proof in the record that the
employer made any subsequent address changes with the carrier.2
Inasmuch as the carrier sent the notice by certified mail, return
receipt requested, to the address designated by the employer,
substantial evidence supports the Board's decision that the
carrier complied with the requirements of Workers' Compensation
Law § 54 (5) (see Matter of Frazer v Additional Personnel, 108
AD2d 948, 949 [1985]; Matter of Muszynski v Dennis Puricelli
Masonry & Concrete, 92 AD2d 666, 667 [1983]). Consequently, the
decision will not be disturbed.
Garry, Egan Jr., Lynch and Devine, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
1
Claimant was injured on November 18, 2010.
2
The endorsement was presented for the first time in the
carrier's supplemental application for Board review and,
therefore, was not before the WCLJ. Contrary to the employer's
contention, we find that the carrier presented a credible reason
for failing to present the endorsement at the hearing and the
Board did not abuse its discretion in considering it (see 12
NYCRR 300.13 [g]; Matter of Servidio v North Shore Univ. Hosp.,
299 AD2d 685, 686 [2002]).