                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 4, 2014                   518135
________________________________

In the Matter of the Claim of
   EFREN CEDENO,
                    Appellant,
      v

PACOA et al.,                               MEMORANDUM AND ORDER
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   August 21, 2014

Before:   McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.

                             __________


      Law Offices of Joseph Romano, New York City (Anthony
Brooks-Morgese of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for Workers' Compensation Board,
respondent.

                             __________


McCarthy, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed June 25, 2013, which, among other things, assessed a
monetary penalty against claimant's counsel pursuant to Workers'
Compensation Law § 114-a (3) (ii).

      Claimant resides in Queens and, after he was purportedly
injured while working in Nassau County, applied for workers'
compensation benefits. With that application, claimant submitted
a form on counsel's letterhead in which he requested that all
                              -2-                518135

hearings in his case be handled at a hearing site in the City of
White Plains, Westchester County. The Workers' Compensation Law
Judge found that no basis existed for a change of venue and
assessed counsel fees of $250 against claimant's counsel pursuant
to Workers' Compensation Law § 114-a (3) (ii). Upon review, the
Workers' Compensation Board modified by increasing the assessment
of counsel fees to $500. Claimant now appeals.1

      We affirm. The Chair of the Board generally sets "the
times and places for the hearing of claims" by venuing them in
the district in which a claimant resides if he or she lives in
New York (Workers' Compensation Law § 141; see 12 NYCRR 300.7
[b]). A claimant may submit a written request for change of
venue that articulates the reasons for his or her request, and a
written decision must be issued thereon. Claimant's challenges
to that policy are unpreserved for our review given that he
failed to raise them before the Board (see Matter of Mejia v
Camabo Indus., Inc., 117 AD3d 1362, 1362 [2014]; Matter of Toledo
v Administration for Children Servs., 112 AD3d 1209, 1210
[2013]). Moreover, claimant's request for a change of venue was
a procedural motion that necessitated a response, and the Board
properly determined that it was a "proceeding[] in respect of [a
claim for compensation]" within the meaning of Workers'
Compensation Law § 114-a (3) (see Matter of Banton v New York
City Dept. of Corr., 112 AD3d 1195, 1196 [2013]).

      Turning to the merits, claimant's unsubstantiated assertion
that it would be "most convenient" for him to attend hearings in
a district with no connection to either his residence or the


    1
        Given that the only issues on this appeal relate to the
assessment of counsel fees, "counsel is the party in interest
pursuant to Workers' Compensation Law § 23 and 'should have filed
the notice of appeal on [his] own behalf'" (Matter of Wolfe v New
York City Dept. of Corr., 112 AD3d 1197, 1198 [2013],
quoting Matter of Banton v New York City Dept. of Corr., 112 AD3d
1195, 1196 n [2013]). No allegation of prejudice has been made,
however, and we will disregard that defect and treat the appeal
as having been taken by counsel (see CPLR 2001; Matter of Wolfe v
New York City Dept. of Corr., 112 AD3d at 1198).
                              -3-                  518135

accident site did not warrant a change in venue. Counsel for
claimant was well aware that such groundless requests for a venue
change would be rejected and, thus, substantial evidence supports
the Board's assessment of counsel fees pursuant to Workers'
Compensation Law § 114-a (3) (ii) (see Matter of Difilippo v Con
Edison, 117 AD3d 1363, 1364 [2014]; Matter of Wolfe v New York
City Dept. of Corr., 112 AD3d 1197, 1198 [2013]). Lastly, we are
unpersuaded that the Board lacked authority to modify the
decision of the Workers' Compensation Law Judge and increase the
amount of that assessment (see Workers' Compensation Law § 23).

     Garry, Egan Jr., Lynch and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
