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In the Matter of the Claim of v. New York City Transit Authority

State of New York Supreme Court, Appellate Division Third Judicial Department


March 24, 2011

IN THE MATTER OF THE CLAIM OF FRANK CUCINELLA, APPELLANT,
v.
NEW YORK CITY TRANSIT AUTHORITY, RESPONDENT. WORKERS' COMPENSATION BOARD, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: February 18, 2011

Before: Mercure, J.P., Rose, McCarthy and Egan Jr., JJ.

Appeal from a decision of the Workers' Compensation Board, filed October 31, 2008, which ruled that claimant violated Workers' Compensation Law § 114-a and disqualified him from receiving wage replacement benefits.

Claimant sustained injuries to his neck and back in March 2000 during his employment as a bus driver. Thereafter, he was awarded workers' compensation benefits and, in July 2002, was found to be permanently partially disabled. In March 2006, the self-insured employer raised the issue of whether claimant had violated Workers' Compensation Law § 114-a. A Workers' Compensation Law Judge determined that claimant had violated Workers' Compensation Law § 114-a and assessed the mandatory penalty of forfeiture of benefits for the period between January 2002 and January 2005. On appeal, the Workers' Compensation Board modified the determination to include the discretionary penalty of disqualifying claimant from receiving future benefits. Claimant now appeals.

In response to claimant's application for full Board review, the Board filed an amended decision on June 29, 2010 that denied such review, but effectively rescinded its October 31, 2008 determination from which claimant currently appeals. Accordingly, this appeal must be dismissed as moot (see Matter of Morrison v T & D Painting, LLC, 53 AD3d 1026, 1027 [2008]; Matter of Fabiano v Sears, 27 AD3d 884 [2006]; Matter of Alund v Malt Riv. Brewing Co., 15 AD3d 746, 747 [2005]).

Mercure, J.P., Rose, McCarthy and Egan Jr., JJ., concur.

ORDERED that the appeal is dismissed, as moot, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110324

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