Claim of Sarlo v. Antona Trucking Co.

Appeal from a decision of the Workers’ Compensation Board, filed December 1, 1981, which found the State Insurance Fund to be the carrier on the risk on the date of claimant’s accident because its prior cancellation of the employer’s insurance policy did not comply with the requirements of subdivision 5 of section 54 of the Workers’ Compensation Law. The board found that appellant State Insurance Fund did not properly cancel the employer’s insurance policy. We agree. Proper cancellation of the policy in question requires, inter alia, that a notice of cancellation be “served' on the employer by delivering it to him or by sending it by mail, by certified or registered letter, return receipt requested” (Workers’ Compensation Law, § 54, subd 5). And, “[flor obvious reasons of public policy underlying the very structure of the [Workers’] Compensation Law a policy may only be cancelled in strict conformity with the statute” (Matter of Horn v Malchoff, 276 App Div 683, 685, mot for lv to app den 301 NY 814; see, also, Matter of Fromer v John St. Serv. Center, 34 AD2d 1081). In the present case, the sole evidence that a notice of cancellation was sent to the employer is a mailing manifest which shows that a piece of certified mail was sent to the employer. However, there is nothing in the manifest or the record which demonstrates that a cancellation notice was in fact sent to the employer. Furthermore, contrary to the State Insurance Fund’s assertion, the presumption of regularity does not arise in this case as no proof of office practice was offered (see Nassau Ins. Co. v Murray, 46 NY2d 828). Decision affirmed, with costs to the Uninsured Employers’ Fund. Kane, J. P., Main, Mikoll, Weiss and Levine, JJ., concur.