IN RE BROWN

Citation Codes

Equivalent Citations

citation codes

Docket Number

93702.

Attorney(S)

Stroock Stroock Lavan L.L.P., New York City (Martin Minkowitz of counsel), for appellant. Fine, Olin, Anderman P.C., New York City (David J. Wukitsch of McNameee, Lochner, Titus Williams P.C., Albany, of counsel), for Edward Brown Jr. and others, respondents. Eliot Spitzer, Attorney General, New York City (Patrick J. Walsh of counsel), for Workers' Compensation Board, respondent.

Judges

Robert S. Rose

Acts

Labor — General Provisions — Employee Retirement Income Security Program — Protection Of Employee Benefit Rights — Congressional Findings And Declaration Of Policy

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IN THE MATTER OF THE CLAIM OF EDWARD BROWN JR., Respondent, v. VERIZON NEW YORK, INC., Formerly Known as BELL ATLANTIC, Appellant. WORKERS' COMPENSATION BOARD, Respondent. (And Fi

MEMORANDUM AND ORDER

MUGGLIN, J.Page 839

These six cases, while not among the 974 cases for which Staruch v. New York Tel. Co. ( 277 A.D.2d 830, lv dismissed, lv denied 96 N.Y.2d 852) was designated the lead case, present once again the issue of whether an employer's right to recover moneys paid pursuant to an employee benefit plan from a later workers' compensation schedule award is governed by Workers' Compensation Law § 25 (4)(a) or (c). We hold that the principles of collateral estoppel and stare decisis both apply to bar appellate review of this issue for the third time (see Staruch v. New York Tel. Co., 304 A.D.2d 867). Collateral estoppel applies where the identical issue was previously necessarily decided and the party against whom the doctrine will be applied had a full and fair opportunity to contest the issue (see Sterling Ins. Co. v. Chase, 287 A.D.2d 892, 893). Both requirements are satisfied in this case. The doctrine of stare decisis also operates to prevent reexamination of issues once resolved (see People v. Bing, 76 N.Y.2d 331, 338; Moore v. City of Albany, 98 N.Y. 396, 410). Hundreds of cases have been or are now being processed by the Workers' Compensation Board in conformity with this Court's two Staruch decisions, presenting a compelling reason not to reexamine and change the established rules.

We disagree with the employer's contention that the case of claimant Richard D'Arpe is factually distinguishable because the employer filed proof of the terms of the plan as required by Workers' Compensation Law § 25 (4)(c). Notably, the filing occurred September 4, 2001, after the award of compensation was made on August 30, 2001.

Lastly, for the same reasons expressed in our second Staruch decision (Staruch v. New York Tel. Co., 304 A.D.2d 867, 869, supra), we decline to address whether the Employee Retirement Income Security Act ( 29 U.S.C. § 1001 et seq.) preempts Workers' Compensation Law § 25 (4)(c) and defer that issue to a case where it is squarely presented.

Spain, J.P., Carpinello and Rose, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

IN THE MATTER OF THE CLAIM OF EDWARD BROWN JR., Respondent, v. VERIZON NEW YORK, INC., Formerly Known as BELL ATLANTIC, Appellant. WORKERS' COMPENSATION BOARD, Respondent. (And Fi

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