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Borelli v. Rochester Transit Corp.

Supreme Court of New York, Appellate Division

December 28, 1954

Borelli
v.
Rochester Transit Corp.

APPEALS from decisions and awards of the Workmen's Compensation Board, filed December 21, 1951, October 15, 1952, June 10, 1953, and September 17, 1953, for death benefits under the Workmen's Compensation Law.

COUNSEL

John M. Cullen for Special Fund for Reopened Cases, appellant.

Morgan F. Bisselle and Warren C. Tucker for Rochester Transit Corporation and another, appellants.

Nathaniel L. Goldstein, Attorney-General (Harry Pastor and Roy Wiedersum of counsel), for Workmen's Compensation Board, respondent.

ZELLER, J.

On this appeal, arising from a workmen's compensation proceeding, we are asked to determine whether a letter--hereinafter quoted--constitutes a notice of claim and, if we give an affirmative answer, whether payments of death benefits shall be made by the Special Fund or by the insurance carrier.

While in the course of his employment on June 30, 1942, John Borelli sustained accidental injuries which resulted in his death on July 2, 1942. At a hearing before the referee on September 11, 1942, information was given that the decedent was survived by a widow living in Italy. In the absence of any claim by her, a direction was made that a nephew be reimbursed to the extent of $200 for funeral expenses paid by him and that the case be adjourned for two years. Section 28 of the Workmen's Compensation Law provides that the right to death benefit compensation shall be barred unless within two years from the date of death a claim shall be filed with the chairman of the board. On November 20, 1944, no claim having been filed by the widow, the referee made an award to the special funds and closed the case.

Shortly after July 11, 1949, the following letter was received by the Workmen's Compensation Board from the attorneys for the Italian Consul General in New York:

'Re: John Borelli vs. Rochester Transit Corporation * * *

'We are the attorneys for the Italian Consul General at New York, who has requested us to inquire into the above entitled matter.

Page 232

'John Borelli died in 1943 as a result of an accident occurred in Rochester, N. Y., where he was employed by the Rochester Transit Corporation-- P. O. BOX 139--Rochester, N.Y. The heirs in Italy have inquired at the Italian Consulate General as to the insurance and compensation benefits to which they may be entitled.

'We have contacted the Utica Mutual Insurance Company, who was the compensation carrier at the time of the accident. This Company advised us that this matter is under the jurisdiction of your Board, and that any ...


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