Ramirez ex rel. Echevarria v. Echevarria

213 A.D.3d 1098

184 N.Y.S.3d 218

In the Matter of the Claim of Sarah RAMIREZ, ON BEHALF OF Garrison ECHEVARRIA, as Surviving Child of Gregory Echevarria, Deceased, Appellant,

v.Keamesha ECHEVARRIA, Respondent, et al., Respondents.

Workers’ Compensation Board, Respondent.

534683

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 17, 2023

Decided and Entered: February 16, 2023

Law Offices of Klee Woolf Goldman & Filpi LLP, Mineola (Sarah L. Baia of counsel), for appellant.

Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, Brooklyn (Michael K. Gruber of counsel), for Keamesha Echevarria, respondent.

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeals (1) from a decision of the Workers’ Compensation Board, filed July 7, 2021, which ruled, among other things, that Keamesha Echevarria was entitled to death benefits as decedent's surviving spouse, and (2) from a decision of said Board, filed December 24, 2021, which denied an application filed on behalf of Garrison Echevarria for reconsideration and/or full Board review.

In January 2004, Gregory Echevarria (hereinafter decedent) and Keamesha Echevarria (hereinafter Echevarria) married. Shortly thereafter, decedent enlisted in the Army and eventually was stationed in Germany. Echevarria joined decedent in early 2005 and resided in Germany, with their three children, until June 2008, when the family returned to New York. Decedent subsequently returned to Germany for his deployment, and Echevarria and the children remained in New York. According to Echevarria, decedent consented to this arrangement in order to, among other things, facilitate Echevarria's desire to pursue an education, and decedent, who remained in contact with his family while in Germany, would stay with them whenever he was home on leave.

In September 2012, Echevarria commenced an action for divorce in Florida, where she then was residing, citing the irretrievable breakdown of the marriage and listing the date of separation as July 8, 2008. Decedent, who apparently briefly resided with Echevarria and the children in Florida following his discharge from the Army in May 2013, answered, admitted the allegations contained in the underlying petition and requested that a copy of the judgment of divorce be mailed to him. For reasons not clear from the record, the divorce was never finalized.

Echevarria began a romantic relationship with someone else in July 2015, and had a child with that individual in April 2016. Decedent, in turn, moved in with his fiance´e in July 2017 and, in January 2019, a child was born to that relationship. In March 2019, Echevarria again filed for divorce – this time in Alabama. Decedent retained counsel and filed a notice of appearance and discovery demands, and the matter was set down for a trial in June 2019. Decedent, however, was killed in a work-related accident in April 2019 and so, the divorce was never finalized.

Following decedent's death, Echevarria filed for workers’ compensation survivors’ benefits, seeking benefits for the three children of her marriage with decedent, and for herself as decedent's surviving spouse. Shortly thereafter, decedent's fiance´e filed a similar claim seeking benefits for the child that she and decedent shared, and asserted that Echevarria was not entitled to spousal benefits because she had abandoned decedent. Hearings ensued and, by amended decision filed in June 2020, a Workers’ Compensation Law Judge found, among other things, that Echevarria had not abandoned decedent prior to his death, and awarded her benefits as decedent's surviving spouse. Upon administrative review, the Workers’ Compensation Board affirmed, and decedent's fiance´e – on behalf of the minor child that she and decedent shared – appealed. The fiance´e's subsequent application for reconsideration and/or full Board review was denied, and she appeals from that decision as well.

"For purposes of the workers’ compensation death benefits provision, which gives first priority to surviving spouses, ‘the term surviving spouse shall be deemed to mean the legal spouse’ of the deceased employee" ( Matter of Langan v. State Farm Fire & Cas., 48 A.D.3d 76, 78, 849 N.Y.S.2d 105 [3d Dept. 2007], quoting Workers’ Compensation Law § 16[1–a][2] ). Excluded from the definition of a legal spouse, however, is "a spouse who has abandoned the deceased" ( Workers’ Compensation Law § 16[1–a][2] ). The term abandoned, in turn, is defined as acts sufficient to sustain a judgment of separation within the meaning of Domestic Relations Law § 200 (see Workers’ Compensation Law § 16[1–a][3] ; Matter of Way v. J & J Log & Lbr. Corp., 19 A.D.3d 929, 930, 797 N.Y.S.2d 186 [3d Dept. 2005] ; Matter of Shumway v. Albany Port Tavern, Inc., 154 A.D.2d 751, 752, 546 N.Y.S.2d 200 [3d Dept. 1989] ). "[A]bandonment in this context requires proof that the separation was voluntary, unjustified, nonconsensual, and intended to be permanent" ( Matter of Way v. J & J Log & Lbr. Corp., 19 A.D.3d at 930, 797 N.Y.S.2d 186 ; see Matter of Shumway v. Albany Port Tavern, 154 A.D.2d at 752, 546 N.Y.S.2d 200 ). The failure to establish even one of the required elements precludes a finding of abandonment (see Matter of Way v. J & J Log & Lbr....