Gibbons v. Zara Construction Co.

Appeal from a decision of the Workers’ Compensation Board, filed June 27, 1979, which denied claimant’s application for reconsideration. Claimant, at age 15, was working in a lavatory located in a building which functioned as a repair shop for the repair of machinery used by the employer in its road paving and sewer construction work. Claimant contended that he was employed in a factory in violation of subdivision 2 of section 131 of the Labor Law and that, therefore, he is entitled to double 676 compensation pursuant to subdivision 1 of section 14-a of the Workers’ Compensation Law. By decision, filed December 1, 1978, the board found that there was no violation of section 131 of the Labor Law and concluded that the employer was not liable for an award under section 14-a of the Workers’ Compensation Law. Claimant applied to the board for reconsideration of this decision, maintaining that the board had failed to properly construe the pertinent statutes. Claimant’s application was denied by the board. On December 13, 1979, this court granted respondent’s motion to dismiss claimant’s appeal from the board’s decision filed December 1, 1978 on the ground that it was untimely taken. Consequently, the sole issue on this appeal is the propriety of the board’s decision denying claimant’s application for reconsideration. The board’s denial of an application for reconsideration may not be disturbed unless it was arbitrary and capricious or an abuse of discretion (Matter of Oliva v Albany Cycle Co., 72 AD2d 641; Matter of Eddings v Big Jim Serv. Center, 62 AD2d 1119). Claimant offered no additional facts or newly discovered evidence to the board on his application for reconsideration. In our view, the decision of the board was not an abuse of discretion nor arbitrary and capricious, and, therefore, it must be affirmed (Matter of Wasserman v Charcoal Chef, 66 AD2d 981; Matter of Aiello v Rissel Constr. Corp., 37 AD2d 884, mot for lv to app den 30 NY2d 484). Decision affirmed, without costs. Greenblott, J. P., Sweeney, Main, Mikoll and Herlihy, JJ., concur.