Claim of Barberie v. Helmsley Spear Co.

May 22, 2008
Versions:51 A.D.3d 1289
858 N.Y.S.2d 469
Stevenson thought The user wants me to convert a legal document into semantic HTML based on provided images and OCR text. - 4 pages. - Page 1 starts with the end of one case and then the beginning of a new case: “In the Matter of the Claim of JOSEPH BARBERIE...“. - The document ends on page 1292. - The instructions say for multi-opinion documents, convert only the MAIN opinion (one with a complete case caption and full opinion body) and skip partial content from a previous case. - The main opinion starts at the bottom of page 1289: “In the Matter of the Claim of Joseph Barberie, Claimant, v Helmsley Spear Company et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers’ Compensation Board, Respondent. [858 NYS2d 469]“. - Case Name: In the Matter of the Claim of Joseph Barberie v Helmsley Spear Company et al. - Short Name: Matter of Barberie v Helmsley Spear Co. (or just Barberie v. Helmsley Spear Co.?) - Docket: Not explicitly given as a “No. 123“, but there‘s a citation: [858 NYS2d 469]. - Court: New York Supreme Court, Appellate Division, Third Department (judges listed on pages 1289 and 1290). Let‘s check the judges. Cardona, Spain, Carpinello, Malone (concurring) - these are AD3 judges. Mercure, J.P. wrote the opinion. - Date: August 28, 2006 (filed date of the Board decision being appealed, but the appellate decision date isn‘t explicitly shown on the page start, though often these reporter pages are from a specific year). However, the Board decision was 2006. The reporter citation 858 NYS2d 469 corresponds to a 2008 decision (specifically April 17, 2008). I will check the metadata from the text. - Metadata: “Mercure, J.P. Appeal from a decision... filed August 28, 2006“. - Case Name: In the Matter of the Claim of JOSEPH BARBERIE, Claimant, v HELMSLEY SPEAR COMPANY et al., Respondents, and SPECIAL FUND FOR REOPENED CASES, Appellant. WORKERS’ COMPENSATION BOARD, Respondent. - Short Name: Matter of Barberie v Helmsley Spear Co. - Court: N.Y. App. Div. - Citation: 858 N.Y.S.2d 469 (from text) - Date: The text says the Board decision was filed Aug 28, 2006. The court decision date isn‘t on these snippets. I‘ll look for it or use the context. Actually, the snippets don‘t show the exact court date header. I will omit the date if not present or use the year from citations (2008). - Reporter Page numbers: 1289, 1290, 1291, 1292. - Starts at the square bullet on page 1289. - “In the Matter of the Claim of JOSEPH BARBERIE, Claimant, v HELMSLEY SPEAR COMPANY et al., Respondents, and SPECIAL FUND FOR REOPENED CASES, Appellant. WORKERS’ COMPENSATION BOARD, Respondent. [858 NYS2d 469]” - Page 1290: Mercure, J.P. Appeal... - Page 1292: Opinion ends with “Ordered that the decision is affirmed, without costs.” and signatures “Peters, Kane, Kavanagh and Stein, JJ., concur.” - There‘s a footnote on page 1292 marked with an asterisk `*`. - `jurisdiction=“US“` for federal, etc. - `jurisdiction=“NY“` for New York. - `cite=“N.Y. Work. Comp. Law § 25-a“` - `cite=“N.Y. Work. Comp. Law § 29“` - `cite=“33 AD3d 1098“` - `cite=“60 NY2d 131“` - Skip the text at the top of 1289 (“prohibiting the flexibility... remainder of petition dismissed and determination confirmed.“). This is the end of *Matter of New York State Assn. of Serv. Stas. & Repair Shops v Commissioner of Taxation & Fin.*. 1. `` (where X is the first page number)“. The case starts on page 1289. Let‘s refine citations for “Matter of” cases. `case=“Matter of Barberie v. Helmsley Spear Co.“` (Caption name is JOSEPH BARBERIE). Wait, full name in `midpage-case-name`: “In the Matter of the Claim of JOSEPH BARBERIE, Claimant, v HELMSLEY SPEAR COMPANY et al., Respondents, and SPECIAL FUND FOR REOPENED CASES, Appellant. WORKERS’ COMPENSATION BOARD, Respondent.” Let‘s look at citation `cite` attribute logic. `33 AD3d 1098` -> `33 A.D.3d 1098` `60 NY2d 131` -> `60 N.Y.2d 131` `285 App Div 226` -> `285 A.D. 226` or `285 App. Div. 226`? Bluebook says `A.D.` for NY App Div in 2d/3rd department reports? No, `A.D.2d` is `App. Div. 2d`. `App. Div.` is the reporter name for the first series. Bluebook: `N.Y. App. Div.` for court. Reporter `A.D.`, `A.D.2d`, `A.D.3d`. I will use `A.D.2d`, `A.D.3d`, `N.Y.2d`, `App. Div.` as reporter abbreviations. One more check on `midpage-law`. `Workers’ Compensation Law § 25-a` One detail: `Matter of Manning v Niagara Mohawk Power Corp., 119 AD2d 947, 947 [1986]`. The comma before the year is standard in NY reports. Text: `Matter Manning v Niag- of ara Mohawk Power Corp., 119 AD2d 947, 947 [1986]` OCR is a bit messy there, I‘ll fix it to match the image: “Matter of Manning v Niagara Mohawk Power Corp., 119 AD2d 947, 947 [1986]” Wait, footnote marker in page 1292 is `*`. `*` And then ` ``` Refining `midpage-law` for `section 25-a (8)`. If text is “section 25-a (8)“, cite should be `N.Y. Work. Comp. Law § 25-a(8)` and `type=“short“`. Wait, the footnote `*` mark is correctly placed. The concurrency list is at the end. One correction: `Schreckinger` cite. `9 AD2d 333, 335 [1959]` spans the page break. `Matter of Schreckinger v York Distribs., 9 AD2d 333, 335 [1959]` Actually, the instruction says: “Place `` at word boundaries, not mid-word“. In the image: `9 AD2d [end of line] 333` So: ` 333` Let‘s double check party names in captions. “In the Matter of the Claim of JOSEPH BARBERIE...” The standard Bluebook for “In the Matter of the Claim of X” is often `Matter of X`. Short name: `Matter of Barberie v. Helmsley Spear Co.` Statute normalization check: `Workers’ Compensation Law § 25-a` -> `N.Y. Work. Comp. Law § 25-a` `Workers’ Compensation Law § 25-a [1]` -> `N.Y. Work. Comp. Law § 25-a(1)` Wait, I need to make sure I don‘t miss any law tags. “Workers’ Compensation Law § 29” “Workers’ Compensation Law § 29 (4)” “Workers’ Compensation Law § 25-a [8]” “Workers’ Compensation Law §§ 25-a and 29” -> two tags or one? The instruction says: “Each citation gets its own tag“. `Workers’ Compensation Law §§ 25-a and 29` Check `midpage-signature`. Author: Mercure, J.P. I will place him in a signature block at the end if appropriate, but since he‘s listed at the top, I‘ll keep him there as in the original. However, I can add a signature block for the court‘s final decision. The instructions say: “Skip signature images, preserve typed name and title.” The concurring judges are typed. I‘ll include them. Actually, I‘ll follow the exact text layout. Wait, the “In the Matter of the Claim of JOSEPH BARBERIE...” line at the bottom of 1289 is the title/caption. The `858 NYS2d 469` is a parallel citation for the case itself. I‘ll wrap it in `midpage-case`. One final look at the text. Page 1292: `(Matter of Kelly v State Ins. Fund (60 NY2d at 139)—i.e., where the carrier enjoys a temporary holiday due to a third-party settlement—is present.` Wait, the closing parenthesis is at the end of the citation. Image: `(60 NY2d at 139)—i.e., ...` The tag should be `(60 NY2d at 139)`. Wait, the cite in the footnote: `Matter of Kelly v State Ins. Fund (60 NY2d at 139)`. In NY reports, parentheses are often used for citations. I will follow the text: `Matter of Kelly v State Ins. Fund (60 NY2d at 139)`. Okay, I‘m ready. ```html

In the Matter of the Claim of JOSEPH BARBERIE, Claimant, v HELMSLEY SPEAR COMPANY et al., Respondents, and SPECIAL FUND FOR REOPENED CASES, Appellant. WORKERS’ COMPENSATION BOARD, Respondent. [858 NYS2d 469]—

Mercure, J.P. Appeal from a decision of the Workers’ Compensation Board, filed August 28, 2006, which directed that the award of workers’ compensation benefits be paid by the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a.

In 1996, claimant was classified as having sustained a permanent, partial disability, which was apportioned 55% to a work-related 1992 injury and 45% to a 1989 claim. He was awarded compensation from August 1992 through January 1997. Claimant also pursued a third-party personal injury action, which resulted in a net settlement of $23,500 in August 1994. The workers’ compensation carrier responsible for the 1992 injury took a credit for the third-party recovery and, when the credit was exhausted, awards resumed and were ongoing at a rate of $200 per week through July 2000. The case was closed in 2001, subsequently reopened for reinstatement of certain awards, and closed again in October 2002. The parties do not dispute that the case was truly closed at that time and that the last payment of compensation was made in January 2002.

Claimant suffered a new work-related injury in December 2000, and awards were directed in that case beginning in July 2003. There was a finding of no compensable lost time from December 2000 until July 2003. The 1992 case remained closed until 2005, when a hearing was held to apportion disability among claimant‘s various injuries and the Workers’ Compensation Board ordered that the prior 1989 and 1992 cases be reopened. The carrier in the 1992 case then asserted that Workers’ Compensation Law § 25-a applies such that liability should be shifted to the Special Fund for Reopened Cases. A Workers’ Compensation Law Judge declined to transfer liability. Upon the carrier‘s administrative appeal, the Board reversed, concluding that the prohibition in Workers’ Compensation Law § 25-a (8) on transfer of liability to the Special Fund did not apply because more than seven years had passed since the date of the accident and, solely due to the fact that claimant had been working and not losing wages, more than three years had passed after the last payment of compensation benefits. The Special Fund appeals, and we now affirm.

Generally, liability shifts to the Special Fund when a workers’ compensation case that was fully closed is reopened more than seven years after the underlying injury was sustained and more than three years after the last payment of compensation (see Workers’ Compensation Law § 25-a [1]; Matter of Stanford v Lewis County Opportunities, 33 AD3d 1098, 1099 n [2006]). Such transfer of liability is prohibited, however, when an “award[ ] for deficiency compensation [is] made pursuant to” Workers’ Compensation Law § 29 (4) (Workers’ Compensation Law § 25-a [8]; see Matter of Sidorovski v New Venture Gear, 49 AD3d 1096, 1097 [2008]). Deficiency compensation is “the difference between the amount actually received by claimant in the third-party action and the benefits he is entitled to under the Workers’ Compensation Law” (Matter of Manning v Niagara Mohawk Power Corp., 119 AD2d 947, 947 [1986], lv denied 68 NY2d 609 [1986]; see Workers’ Compensation Law § 29 [4]; Matter of Kelly v State Ins. Fund, 60 NY2d 131, 138 [1983]).

Notably, when a claimant recovers proceeds in a third-party action, the “amount of the proceeds which the claimant receives is an offset against future payments of compensation and no future payments will be made until the credit is exhausted“—i.e., until a deficiency arises (Minkowitz, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 64, Workers’ Compensation Law § 29, at 199; see Matter of Dimaggio v International Chimney Corp., 285 App Div 226, 229 [1954]). As such, “[i]n a deficiency case[,] the proceeds of [the third-party] recovery inure . . . to the benefit of the carrier because it relieves the carrier, for a time, from paying regular compensation benefits” (Matter of Kelly v State Ins. Fund, 60 NY2d at 139). In recognition of that benefit to the carrier, this Court has long held that “the spirit and purpose of” Workers’ Compensation Law §§ 25-a and 29 “is to keep the carrier on the risk where a claim is postponed due to third-party litigation, since success in such litigation will of course redound to the carrier‘s benefit” (Matter of Gantz v Wallace & Tiernan Lucidol Div., 41 AD2d 991, 992 [1973]). In contrast, “where the award has been made and paid or fully credited and the deficiency had been established and fully reflected in an award or it is established . . . that there is a surplus, and the case closed, there is nothing in the language of these sections read together to show any clear intention to have the carrier remain indefinitely subject to further assessment of compensation on the theory that from time to time the [B]oard may make a further deficiency award or turn a surplus into a deficiency” (Matter of Craven v Andrews, 283 App Div 345, 348 [1954]).

Stated differently, when payment of compensation on a claim is postponed due to third-party litigation or settlement, the carrier has notice of the claimant‘s continuing disability and Workers’ Compensation Law § 25-a (8) precludes transfer of liability to the Special Fund when deficiency compensation is sought (see Matter of Manning v Niagara Mohawk Power Corp., 119 AD2d at 947; Matter of Schreckinger v York Distribs., 9 AD2d 333, 335 [1959]; Matter of McCarthy v Heinz Co., 2 AD2d 908, 909 [1956]). When the “third-party settlement played no part in the expiration of the time periods necessary to shift liability to the Special Fund,” however, liability will transfer to the Special Fund (Matter of Sidorovski v New Venture Gear, 49 AD3d at 1097-1098; see Matter of Belleville v Madame Pirie‘s, Inc., 28 AD3d 977, 977-978 [2006], lv denied 7 NY3d 717 [2006]; Matter of Tritto v Lasala Constr. Co., 77 AD2d 753 [1980]; Matter of Gantz v Wallace & Tiernan Lucidol Div., 41 AD2d at 992; Matter of Craven v Andrews, 283 App Div at 348; but see Matter of Kusy v South Orangetown Cent. School Dist., 34 AD3d 973, 974-975 [2006]).* Here, the injury occurred in 1992. There is no dispute that the case was closed in 2002, that the last payment of compensation to which claimant was entitled was made in January 2002, and that the credit was exhausted—i.e., claimant‘s entitlement to benefits exceeded the third-party recovery—prior to January 2002 such that the third-party settlement played no part in the subsequent expiration of the time periods set forth in Workers’ Compensation Law § 25-a (8). Accordingly, inasmuch as the relevant time periods were satisfied solely as a result of the passage of time without payment in a closed case, the Board‘s finding that section 25-a (8) is inapplicable is supported by substantial evidence.

Peters, Kane, Kavanagh and Stein, JJ., concur. Ordered that the decision is affirmed, without costs.

``` Wait, I missed a signal “Accord” in the skip case. I missed a “but see” in *Kusy*. I should check signals. `but see Matter of Kusy ...` - Correct. `see Matter of Stanford ...` - Correct. Statute citation `Workers’ Compensation Law §§ 25-a and 29` I‘ll wrap them separately. Checking “Minkowitz” cite again. `Minkowitz, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 64, Workers’ Compensation Law § 29, at 199` I‘ll wrap `Workers’ Compensation Law § 29`. One more law cite: `Tax Law § 1105 (a)` - skip, first case. One small detail in OCR: `Compensa- tion` -> `Compensation`. Caption page 1289: `WORKERS’ COMPENSA- TION BOARD`. Corrected. Wait, page 1292: `Peters, Kane, Kavanagh and Stein, JJ., concur. Ordered that the decision is affirmed, without costs.` I will put this in a separate paragraph as in the image. The `midpage-case-name` in info should be consistent. Caption starts: “In the Matter of the Claim of JOSEPH BARBERIE, Claimant, v HELMSLEY SPEAR COMPANY et al., Respondents, and SPECIAL FUND FOR REOPENED CASES, Appellant. WORKERS’ COMPENSATION BOARD, Respondent.” Final check on `id` citations. `Id.` on page 1290 (Wait, it says `(see id. at 10-16)` in the first case). In *Barberie* case, no “Id.” used for cases, but for statutes maybe? Wait, `section 25-a (8)` is used as a short form. I‘ll use `type=“short“`. No “Id.” for cases in the *Barberie* opinion. Wait, `Matter of Schreckinger ... 335 [1959]` The pinpoint 335 and date [1959] are after the page break. I‘ll group it. `Matter of Schreckinger v York Distribs., 9 AD2d 333, 335 [1959]` Wait, the instruction says “Place `` at word boundaries, not mid-word“. Between `9 AD2d` and `333` is a word boundary (space). So: ` 333, 335 [1959]` Is there a `supra`? No. Ready.

Notes

*
`. Let‘s do the HTML. Case Info Details: Case name: In the Matter of the Claim of JOSEPH BARBERIE, Claimant, v HELMSLEY SPEAR COMPANY et al., Respondents, and SPECIAL FUND FOR REOPENED CASES, Appellant. WORKERS’ COMPENSATION BOARD, Respondent. Short name: Matter of Barberie v. Helmsley Spear Co. Citation: 858 N.Y.S.2d 469 Docket: No docket number is visible on the page. (The 858 NYS2d citation is a reporter citation). Court: N.Y. App. Div. Date: 2008 (implied by reporter volume). Starting the conversion. Page 1289: Square bullet. Case Caption. Page 1290: Mercure, J.P. ... affirm. Generally, liability shifts ... an Page 1291: “award[ ] ... Schreckinger v York Distribs., 9 AD2d Page 1292: 333 ... without costs. Concurrences. Footnote at bottom. (Skip the Widewaters case at the bottom). Normalization check for statutes: “General Business Law § 198-a” (from previous case, skip) “Tax Law § 1105 (a)” (from previous case, skip) “Workers’ Compensation Law § 25-a” -> `N.Y. Work. Comp. Law § 25-a` “Workers’ Compensation Law § 29” -> `N.Y. Work. Comp. Law § 29` One more: “Minkowitz, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 64, Workers’ Compensation Law § 29, at 199” This is a treatise/statutory commentary citation. I‘ll wrap the law part. `Workers’ Compensation Law § 29` Reflowing hyphenated words: - manufacturers’ (skip, first case) - “complying” (skip, first case) - “Compensation” (Page 1289 caption “Compensa- tion“) - “permanent” (Page 1290 “perma- nent“) - “Compensation” (Page 1290 “Compensa- tion“) - “concluding” (Page 1290 “conclud- ing“) - “difference” (Page 1291 “dif- ference“) - “Niagara” (Page 1291 “Niag- ara“) - “Commentaries” (Page 1291 “Commentar- ies“) - “Compensation” (Page 1291 “Compensa- tion“) - “inure” (Page 1291 “in- ure“) - “recognition” (Page 1291 “recog- nition“) - “litigation” (Page 1291 “lit- igation“) - “assessment” (Page 1291 “assess- ment“) - “settlement” (Page 1291 “settle- ment“) - “precludes” (Page 1291 “pre- cludes“) - “inapplicable” (Page 1292 “inap- plicable“) - “interpretation” (Page 1292 footnote “interpreta- tion“) Checking pinpoints: - `33 AD3d 1098, 1099 n` -> cite: `33 A.D.3d 1098`, pinpoint: `1099 n`. - `60 NY2d at 139` -> cite: `60 N.Y.2d 131` (from earlier), pinpoint: `139`. Final check on court abbreviations: `AD3d` is `App. Div. 3d Dept.` but often cited as `A.D.3d`. Bluebook: `App. Div.`. Reporter `A.D.3d`. I will use the reporter name for `cite` and `App. Div.` for `court` if it‘s the NY Appellate Division. `N.Y.` for Court of Appeals. Wait, `Matter Manning v Niagara Mohawk Power Corp.` The OCR has “Matter Manning v Niag- of ara“. The word “of” is out of place. Image says: “Matter of Manning v Niagara...“. Fixed. Let‘s go. ```html

In the Matter of the Claim of JOSEPH BARBERIE, Claimant, v HELMSLEY SPEAR COMPANY et al., Respondents, and SPECIAL FUND FOR REOPENED CASES, Appellant. WORKERS’ COMPENSATION BOARD, Respondent. [858 NYS2d 469]—

Mercure, J.P. Appeal from a decision of the Workers’ Compensation Board, filed August 28, 2006, which directed that the award of workers’ compensation benefits be paid by the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a.

In 1996, claimant was classified as having sustained a permanent, partial disability, which was apportioned 55% to a work-related 1992 injury and 45% to a 1989 claim. He was awarded compensation from August 1992 through January 1997. Claimant also pursued a third-party personal injury action, which resulted in a net settlement of $23,500 in August 1994. The workers’ compensation carrier responsible for the 1992 injury took a credit for the third-party recovery and, when the credit was exhausted, awards resumed and were ongoing at a rate of $200 per week through July 2000. The case was closed in 2001, subsequently reopened for reinstatement of certain awards, and closed again in October 2002. The parties do not dispute that the case was truly closed at that time and that the last payment of compensation was made in January 2002.

Claimant suffered a new work-related injury in December 2000, and awards were directed in that case beginning in July 2003. There was a finding of no compensable lost time from December 2000 until July 2003. The 1992 case remained closed until 2005, when a hearing was held to apportion disability among claimant‘s various injuries and the Workers’ Compensation Board ordered that the prior 1989 and 1992 cases be reopened. The carrier in the 1992 case then asserted that Workers’ Compensation Law § 25-a applies such that liability should be shifted to the Special Fund for Reopened Cases. A Workers’ Compensation Law Judge declined to transfer liability. Upon the carrier‘s administrative appeal, the Board reversed, concluding that the prohibition in Workers’ Compensation Law § 25-a (8) on transfer of liability to the Special Fund did not apply because more than seven years had passed since the date of the accident and, solely due to the fact that claimant had been working and not losing wages, more than three years had passed after the last payment of compensation benefits. The Special Fund appeals, and we now affirm.

Generally, liability shifts to the Special Fund when a workers’ compensation case that was fully closed is reopened more than seven years after the underlying injury was sustained and more than three years after the last payment of compensation (see Workers’ Compensation Law § 25-a [1]; Matter of Stanford v Lewis County Opportunities, 33 AD3d 1098, 1099 n [2006]). Such transfer of liability is prohibited, however, when an “award[ ] for deficiency compensation [is] made pursuant to” Workers’ Compensation Law § 29 (4) (Workers’ Compensation Law § 25-a [8]; see Matter of Sidorovski v New Venture Gear, 49 AD3d 1096, 1097 [2008]). Deficiency compensation is “the difference between the amount actually received by claimant in the third-party action and the benefits he is entitled to under the Workers’ Compensation Law” (Matter of Manning v Niagara Mohawk Power Corp., 119 AD2d 947, 947 [1986], lv denied 68 NY2d 609 [1986]; see Workers’ Compensation Law § 29 [4]; Matter of Kelly v State Ins. Fund, 60 NY2d 131, 138 [1983]).

Notably, when a claimant recovers proceeds in a third-party action, the “amount of the proceeds which the claimant receives is an offset against future payments of compensation and no future payments will be made until the credit is exhausted“—i.e., until a deficiency arises (Minkowitz, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 64, Workers’ Compensation Law § 29, at 199; see Matter of Dimaggio v International Chimney Corp., 285 App Div 226, 229 [1954]). As such, “[i]n a deficiency case[,] the proceeds of [the third-party] recovery inure . . . to the benefit of the carrier because it relieves the carrier, for a time, from paying regular compensation benefits” (Matter of Kelly v State Ins. Fund, 60 NY2d at 139). In recognition of that benefit to the carrier, this Court has long held that “the spirit and purpose of” Workers’ Compensation Law §§ 25-a and 29 “is to keep the carrier on the risk where a claim is postponed due to third-party litigation, since success in such litigation will of course redound to the carrier‘s benefit” (Matter of Gantz v Wallace & Tiernan Lucidol Div., 41 AD2d 991, 992 [1973]). In contrast, “where the award has been made and paid or fully credited and the deficiency had been established and fully reflected in an award or it is established . . . that there is a surplus, and the case closed, there is nothing in the language of these sections read together to show any clear intention to have the carrier remain indefinitely subject to further assessment of compensation on the theory that from time to time the [B]oard may make a further deficiency award or turn a surplus into a deficiency” (Matter of Craven v Andrews, 283 App Div 345, 348 [1954]).

Stated differently, when payment of compensation on a claim is postponed due to third-party litigation or settlement, the carrier has notice of the claimant‘s continuing disability and Workers’ Compensation Law § 25-a (8) precludes transfer of liability to the Special Fund when deficiency compensation is sought (see Matter of Manning v Niagara Mohawk Power Corp., 119 AD2d at 947; Matter of Schreckinger v York Distribs., 9 AD2d 333, 335 [1959]; Matter of McCarthy v Heinz Co., 2 AD2d 908, 909 [1956]). When the “third-party settlement played no part in the expiration of the time periods necessary to shift liability to the Special Fund,” however, liability will transfer to the Special Fund (Matter of Sidorovski v New Venture Gear, 49 AD3d at 1097-1098; see Matter of Belleville v Madame Pirie‘s, Inc., 28 AD3d 977, 977-978 [2006], lv denied 7 NY3d 717 [2006]; Matter of Tritto v Lasala Constr. Co., 77 AD2d 753 [1980]; Matter of Gantz v Wallace & Tiernan Lucidol Div., 41 AD2d at 992; Matter of Craven v Andrews, 283 App Div at 348; but see Matter of Kusy v South Orangetown Cent. School Dist., 34 AD3d 973, 974-975 [2006]).* Here, the injury occurred in 1992. There is no dispute that the case was closed in 2002, that the last payment of compensation to which claimant was entitled was made in January 2002, and that the credit was exhausted—i.e., claimant‘s entitlement to benefits exceeded the third-party recovery—prior to January 2002 such that the third-party settlement played no part in the subsequent expiration of the time periods set forth in Workers’ Compensation Law § 25-a (8). Accordingly, inasmuch as the relevant time periods were satisfied solely as a result of the passage of time without payment in a closed case, the Board‘s finding that section 25-a (8) is inapplicable is supported by substantial evidence.

Peters, Kane, Kavanagh and Stein, JJ., concur. Ordered that the decision is affirmed, without costs.