                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 9, 2017                    523423
________________________________

In the Matter of the Claim of
   RUTH TAITT,
                    Appellant,
      v

MANHATTAN AND BRONX SURFACE
   TRANSIT OPERATING AUTHORITY,              MEMORANDUM AND ORDER
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.

JOSEPH A. ROMANO,
                    Appellant.
________________________________


Calendar Date:    January 10, 2017

Before:    Garry, J.P., Rose, Devine, Clark and Mulvey, JJ.

                              __________


      Law Office of Joseph A. Romano, New York City (Joseph A.
Romano of counsel), for appellants.

                              __________


Rose, J.

      Appeal from a decision of the Workers' Compensation Board,
filed September 10, 2015, which, among other things, denied
claimant's request for a change of venue.

      Claimant, who resides in the Bronx, filed a claim for
workers' compensation benefits, alleging that she was injured
while working in the Bronx as a bus driver. Claimant retained
counsel, who thereafter requested a change in venue from the
district office in Harlem to one in the City of White Plains,
                              -2-                523423

Westchester County, on the grounds that, among other things,
going to Harlem would cause her "anxiety" as she had been
previously assaulted there and that it was difficult for her to
travel to Harlem because of her knee and back conditions. A
Workers' Compensation Law Judge (hereinafter WCLJ) denied the
request based upon a statement of general policy from the Chair
of the Workers' Compensation Board, which provides that venue
change requests involving a public benefit corporation, such as
the employer, shall not be granted except to a district office
where the employer is located. The WCLJ allowed claimant to
appear by phone at future hearings held at the Harlem hearing
site, but also assessed a penalty of $750 against claimant's
counsel pursuant to Workers' Compensation Law § 114-a (3) (ii)
for instituting a proceeding without reasonable grounds. Upon
review, the Board affirmed the denial of the request and the
penalty assessment. This appeal ensued.1

      We affirm. Here, the public employer is headquartered in
Brooklyn, and there is nothing in the record to suggest that it
is located in Westchester County. Moreover, White Plains has no
obvious connection to either claimant or the underlying accident
giving rise to her claim. While claimant allegedly had
difficulty walking long distances due to her knee injuries, and
the WCLJ conceded that the hearing location in Harlem is not


    1
        The notice of appeal was filed by claimant's counsel
solely on his own behalf. Inasmuch as the issues raised on
appeal include the denial of claimant's change of venue request,
claimant is a party in interest pursuant to Workers' Compensation
Law § 23, and, thus, the notice of appeal should have been filed
on behalf of claimant, as well (see Matter of Estwick v Risk Mgt.
Planning, 124 AD3d 1201, 1202 n [2015]; Matter of Cedeno v PACOA,
120 AD3d 1458, 1459 n [2014]; Matter of Wolfe v New York City
Dept. of Corr., 112 AD3d 1197, 1198 [2013]). However, in the
absence of any allegation of prejudice, we will disregard that
defect and treat the appeal as having been taken by both claimant
and her counsel (see CPLR 2001; Matter of Estwick v Risk Mgt.
Planning, 124 AD3d at 1202 n; Matter of Cedeno v PACOA, 120 AD3d
at 1459 n; Matter of Wolfe v New York City Dept. of Corr., 112
AD3d at 1198).
                              -3-                523423

readily accessible by public transportation, claimant was allowed
to appear by phone at future hearings held there. Accordingly,
we agree with the Board that claimant has failed to identify a
reasonable basis for the requested change of venue (see Matter of
Thomas-Fletcher v New York City Dept. of Corr., 120 AD3d 867, 868
[2014]; Matter of Wolfe v New York City Dept. of Corr., 112 AD3d
1197, 1198 [2013]).2

      As for the penalty assessment, the Board is authorized to
assess reasonable counsel fees against an attorney "who has
instituted or continued proceedings without reasonable grounds"
(Workers' Compensation Law § 114-a [3] [ii]), and a request for
change of venue constitutes a proceeding for purposes of the
statute (see Matter of Thomas-Fletcher v New York City Dept. of
Corr., 120 AD3d at 868; Matter of Banton v New York City Dept. of
Corr., 112 AD3d 1195, 1196 [2013]). The Board properly found
that claimant's counsel initiated and continued this proceeding
for change of venue by submitting claimant's written request for
a venue change, reiterating the request at a hearing and asking
that the matter be adjourned pending resolution of the request.
Given the absence of a reasonable basis for seeking the venue
change and the fact that counsel had previously been penalized
for submitting change of venue requests that violated the same
policy statement (see Matter of Thomas-Fletcher v New York City
Dept. of Corr., 120 AD3d at 868; Matter of Toledo v
Administration for Children Servs., 112 AD3d 1209, 1210 [2013]),
we decline to disturb the penalty imposed (see Matter of
Vallecillo v New York City Dept. of Corr., 134 AD3d 1384, 1385
[2015]; Matter of Wolfe v New York City Dept. of Corr., 112 AD3d
at 1198; Matter of Banton v New York City Dept. of Corr., 112
AD3d at 1196-1197). Claimant's remaining contentions, to the
extent that they are properly before us, have been examined and


    2
        Claimant's challenges to the validity of the Chair's
policy statement and its application here are not preserved for
our review as they were not raised before the Board (see Matter
of Cedeno v PACOA, 120 AD3d 1458, 1459 [2014]; 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]).
                             -4-                   523423

found to be without merit.

     Garry, J.P., Devine, Clark and Mulvey, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
