Claim of Foster v. J. & J. Foster Collision, Inc.

Appeals from decisions of the Workmen’s Compensation Board, filed February 5, 1976 and December 1, 1976, which reversed a referee’s decision and allowed death benefits to claimant and her minor son. Appellant contends that there was no substantial evidence to support the board’s decision that the risk accepted by the carrier was unaffected by the change in the legal entity of the insured from partnership to corporate form. We disagree. The policy declaration of the carrier indicates that the policy was issued to insure against the risks of the automobile repair business. The declaration described the classification insured against as "Automobile Repair Shops, all operation [sic], includes drivers.” Four employees were listed in the business in the application for coverage. The decedent died as a result of an auto accident which occurred while he was driving an automobile to the shop for repairs. The partnership was dissolved and the corporation formed on the same day (May 10, 1972) that application was made for compensation coverage for the business. The finding of the board should prevail when conflicting inferences are possible from the evidence (Matter of Glielmi v Netherland Dairy Co., 254 NY 60, 64). Here, there was no evidence introduced to show that the change in the insured’s legal status from copartnership to corporation changed the business risks insured against. No change was shown in the entity’s payroll or number of employees. The determination of the board that the risk remained the same and the consequent reformation of the policy was supported by the evidence (Matter of McCarthy v Ailing Personnel Corp., 33 NY2d 953, revg on the dissent 39 AD2d 782; Matter of Valenti v Valenti, 28 AD2d 572; Matter of Engler v Regent Bindery, 272 App Div 843). Decisions affirmed, with costs to the Workmen’s Compensation Board against the employer and its insurance carrier. Koreman, P. J., Greenblott, Sweeney, Mikoll and Herlihy, JJ., concur.