MATTER OF DEAS v. New York City Hous. Auth.

74 N.Y.2d 914 (1989)

In the Matter of the Claim of James Deas, Claimant, v. New York City Housing Authority et al., Respondents. Workers' Compensation Board, Appellant.

Court of Appeals of the State of New York.

Decided November 21, 1989.

Robert Abrams, Attorney-General (Iris A. Steel of counsel), for appellant.

Paul A. Isaacson and Raymond C. Green for respondent.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.

*915MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and the decision of the Workers' Compensation Board reinstated.

Workers' Compensation Law § 25 (3) (c) (since amended with minor changes and renumbered as Workers' Compensation Law § 25 [3] [d]) provides that an employer or insurer that fails to make timely payment of a workers' compensation award must pay a penalty "to the injured worker or his or her dependents." A penalty was assessed against respondent State Insurance Fund for not timely reimbursing the Housing Authority even though the employer paid claimant's full wages pending determination and reimbursement of the award. The State Insurance Fund expressly conceded on the record an obligation to pay the penalty but argued it should be paid to the employer Housing Authority.

In view of the concession, we need not pass on whether the penalty provision is implicated at all, for if it is, the payment by the statute's plain command must go to the claimant (see, Workers' Compensation Law § 25 [3] [c]).

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.