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Claim of Hemeda v. Sbarro, Inc.

289 A.D.2d 784 Court N.Y. App. Div. Decision date 2001-12-20 English

Delivered by Spain, J.

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p. 784
In the Matter of the Claim of El-Sayed Aly Hemeda, Appellant, v Sbarro, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
[734 NYS2d 513]

Appeal from a decision of the Workers’ Compensation Board, filed June 7, 2000, which ruled that claimant did not sustain an accident in the course of his employment and denied his claim for workers’ compensation benefits.

p. 785
Based upon allegations that he had been assaulted at work by his supervisor, claimant filed a claim for workers’ compensation benefits. At the hearing, claimant and his supervisor, who were the only persons present at the place and time of the alleged assault, presented conflicting versions of the incident, with the supervisor denying that he assaulted claimant. The Workers’ Compensation Board concluded that claimant’s testimony was not believable and denied his claim. Claimant appeals.

Initially, we reject the argument of the employer and its workers’ compensation carrier that claimant’s appeal to this Court was untimely. Nevertheless, inasmuch as the Board is the final judge of the credibility of witnesses, we reject claimant’s contention that the Board erred in crediting the testimony of the supervisor and finding that claimant’s testimony was not credible (see, Matter of Owens v Village of Ellenville Police Dept., 280 AD2d 786 , 787; Matter of Altman v Hazan Import Corp., 198 AD2d 674 , 675). Claimant’s remaining argument concerning the accuracy of the interpreter’s translation of claimant’s testimony was not raised before the Board and will not be considered for the first time on this appeal (see, Matter of Gregg v Randazzo, 216 AD2d 747 ). Because it is supported by substantial evidence, the decision of the Board will not be disturbed (see, Matter of Hernandez v National Mgt. Consultants, 284 AD2d 611 ).

Carpinello, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

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