                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 3, 2015                   519644
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In the Matter of the Claim of
   LIAQAT ALI,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

LIBERTY LINES TRANSIT et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
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Calendar Date:   August 20, 2015

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

                             __________


      Vecchione Vecchione & Connors, Garden City Park (Sean
Dooley of counsel), for appellants.

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

                             __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board,
filed December 24, 2013, which denied the application of the
employer and its workers' compensation carrier for
reconsideration and/or full Board review.

      Claimant, a bus   driver, filed a claim for workers'
compensation benefits   stating that he had suffered a stroke while
working. Following a    hearing, a Workers' Compensation Law Judge
determined that there   was a causal relationship between
                              -2-                519644

claimant's stroke and his employment and established the claim.
That determination was upheld by the Workers' Compensation Board
in a decision filed July 1, 2013. The employer and its workers'
compensation carrier (hereinafter collectively referred to as the
employer) thereafter applied for reconsideration and/or full
Board review. The Board denied the application in a decision
filed on December 24, 2013. The employer now appeals.

      We affirm. Inasmuch as the employer has only appealed from
the Board's December 2013 decision denying its application for
reconsideration and/or full Board review, the merits of the
underlying July 2013 decision are not before us (see Matter of
Kalkbrenner v Accord Corp., 123 AD3d 1303, 1304 [2014]; Matter of
Barone v Interstate Maintenance Corp., 73 AD3d 1302, 1302-1303
[2010]). Therefore, our inquiry is limited to whether the
Board's denial of the employer's application was arbitrary or
capricious or otherwise constituted an abuse of discretion (see
Matter of Mazzaferro v Fast Track Structures, Inc., 106 AD3d
1302, 1302 [2013]; Matter of Dipippo v Accurate Signs & Awnings,
88 AD3d 1044, 1045 [2011]). Here, the employer has failed to
"show that newly discovered evidence exists, that there has been
a material change in condition, or that the Board improperly
failed to consider the issues raised in the application for
review in making its initial determination" (Matter of D'Errico v
New York City Dept. of Corrections, 65 AD3d 795, 796 [2009],
appeal dismissed 13 NY3d 899 [2009]; accord Matter of Regan v
City of Hornell Police Dept., 124 AD3d 994, 997 [2015]).
Accordingly, we cannot conclude that the Board acted in an
arbitrary or capricious manner or abused its discretion in
denying the employer's application.

     Lahtinen, J.P., McCarthy and Garry, JJ., concur.
                        -3-                  519644

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
