Appellate Division of the Supreme Court of New York, 1985

Claim of Reasoner v. New York State Department of Motor Vehicles

Appellate Division of the Supreme Court of New York · Decided April 18, 1985 · Weiss

110 A.D.2d 962

Cases that cite this one

8 later published cases cite this decision.

Matter of Bain v. New Caps, LLC (Appellate Division of the Supreme Court of New York 2018)
Hahn v. Brylin Hospital (Appellate Division of the Supreme Court of New York 2012)
Hahn v. Brylin Hospital (Appellate Division of the Supreme Court of New York 2012)
Claim of Barnard v. John Mezzalingua Associates, Inc. (Appellate Division of the Supreme Court of New York 2007)
Fletcher v. Wegmans (Appellate Division of the Supreme Court of New York 2005)
Claim of Kellish v. Kellish Tire Sales, Inc. (Appellate Division of the Supreme Court of New York 2004)
Claim of Servidio v. North Shore University Hospital (Appellate Division of the Supreme Court of New York 2002)
Pease v. Anchor Motor Freight (Appellate Division of the Supreme Court of New York 1990)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

— Weiss, J.

The sole issue on appeal is whether the Board properly fixed claimant’s average weekly wage. The employer and its carrier contend that claimant’s employment as a MVRSAB member *963was so limited that his compensation rate should be based on actual earnings, not the 200 multiple set forth in Workers’ Compensation Law § 14 (3) (see, Matter of Jacob v Town of Glenville, 43 AD2d 409; Matter of Derion v Gilford Mfg. Co., 282 App Div 788). The record shows that claimant was expected to attend an average of two or three meetings per year. Here, the Board could readily determine that neither Workers’ Compensation Law § 14 (1) nor (2) was applicable, leaving Workers’ Compensation Law § 14 (3) as the appropriate formula. The only exception would be if claimant voluntarily limited his participation in the labor market (see, Matter of Miranda v National Med. Care, 59 AD2d 962, lv denied 43 NY2d 647; Matter of Stallone v Liebmann Breweries, 12 AD2d 716, affd 10 NY2d 907). In view of claimant’s testimony that he was available to attend as many meetings as required and his continued operation of the television repair business, we find ample basis from the entire record to support the Board’s calculation of the average weekly wage pursuant to Workers’ Compensation Law § 14 (3) (see, Matter of Terry v City of Glens Falls, supra; see also, Matter of McMorris v Montgomery County Agric. Socy., 50 AD2d 644; Matter of Gurewicz v 107 N. Fifth St. Corp., 48 AD2d 990; Matter of Birtolo v First Hous. Co., 41 AD2d 872).

Decision affirmed, with costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.