Matter of Leonescu v. Star Liquor Dealers, Inc.

20 N.Y.2d 956 (1967)

In the Matter of the Claim of Morris Leonescu, Respondent, v. Star Liquor Dealers, Inc., et al., Appellants, and Special Funds Conservation Committee, Respondent. Workmen's Compensation Board, Respondent.

Court of Appeals of the State of New York.

Argued September 19, 1967.

Reargued November 29, 1967.

Decided December 6, 1967.

Anne M. Powell, Joseph Dean Edwards, Milton Peckman and Robert N. Van Benthuysen for appellants.

Louis J. Lefkowitz, Attorney-General (Henriette Frieder, Ruth Kessler Toch and Daniel Polansky of counsel), for Workmen's Compensation Board, respondent.

John M. Cullen for Special Fund for Reopened Cases, respondent.

No appearance for claimant-respondent.

Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, KEATING and BREITEL. Judge VAN VOORHIS dissents and votes to reverse and remit the case to the Workmen's Compensation Board in accordance with the dissenting opinion at the Appellate Division.

Upon reargument: Order affirmed, with costs, in the following memorandum: Appellants have conceded that the provisions of the Workmen's Compensation Law (§ 123) would not be applicable here if the board's action in rescinding its prior order of closure was proper. We accept the appellants' concession for the purpose of deciding this case (see Cohen and Karger, Powers of the New York Court of Appeals [Rev. ed., 1952], p. 629). Since we believe that the Appellate Division correctly held that the Workmen's Compensation Board could reopen nunc pro tunc a case that was improperly closed, we affirm the order from which the appeal is taken.