                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 9, 2015                     518917
________________________________

In the Matter of the Claim of
   MARIA BELLANTONI,
                    Respondent,
      v

CITY OF NEW YORK SCHOOL FOOD                MEMORANDUM AND ORDER
   AND NUTRITION SERVICES,
                    Appellant.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   February 18, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


      Zachary W. Carter, Corporation Counsel, New York City
(Andrew Tran of counsel), for appellant.

      Grey & Grey, LLP, Farmingdale (Kevin Plant of counsel), for
Maria Bellantoni, respondent.

      Eric T. Schneiderman, Attorney General, New York City (Iris
A. Steel of counsel), for Workers' Compensation Board,
respondent.

                             __________


Lynch, J.

      Appeal from a decision of the Workers' Compensation Board,
filed July 22, 2013, which ruled that the employer waived the
right to raise the defense that claimant provided untimely notice
of her injury.
                              -2-                518917

      Claimant applied for workers' compensation benefits in
2011, alleging that she suffered a work-related injury to her
shoulder in 2009. The employer controverted the claim, but
neither filed a timely prehearing conference statement as
required by Workers' Compensation Law § 25 (2-a) (d) nor an
affidavit demonstrating due diligence and good cause for the
delay (see also 12 NYCRR 300.38 [f] [1]). As a result, the
Workers' Compensation Board ultimately determined that the
employer waived its defenses to the claim pursuant to 12 NYCRR
300.38 (f) (4) (see Matter of Quagliata v Starbucks Coffee, 82
AD3d 1321, 1322 [2011], lv denied 17 NY3d 703 [2011]; Matter of
Smith v Albany County Sheriff's Dept., 82 AD3d 1334, 1335 [2011],
lv denied 17 NY3d 770 [2011]). The employer now appeals.

      "Inasmuch as the Board's decision was interlocutory and did
not dispose of all of the substantive issues or reach a
potentially dispositive threshold legal issue, it is not
appealable" (Matter of Lewis v Stewart's Mktg. Corp., 122 AD3d
1048, 1049 [2014] [internal quotation marks and citations
omitted]; see Matter of Zaldivar v SNS Org., 119 AD3d 1134, 1135
[2014]). We decline to review the Board's decision here, as it
continued the case for a determination by a Workers' Compensation
Law Judge as to whether claimant has presented sufficient
evidence to establish a claim, and the employer may appeal, if
necessary, from the Board's final decision on this issue (see
Matter of Ortiz v Martin Viette Nurseries, Inc., 82 AD3d 1480,
1480-1481 [2011]; Matter of Ogbuagu v Ngbadi, 61 AD3d 1198, 1199
[2009]). Accordingly, the appeal is dismissed.

     Peters, P.J., Lahtinen and Garry, JJ., concur.
                        -3-                  518917

ORDERED that the appeal is dismissed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
