| Matter of Cabrera v Two-Three-Nought-Four Assoc. |
| 2007 NY Slip Op 10427 [46 AD3d 1255] |
| December 27, 2007 |
| Appellate Division, Third Department |
| In the Matter of Juan Cabrera,Respondent, v Two-Three-Nought-Four Associates, Appellant, and State Insurance Fundet al., Respondents. Workers' Compensation Board, Respondent. |
—[*1] Gregory J. Allen, State Insurance Fund, New York City (Aviva Sharbin of counsel), for StateInsurance Fund and others, respondents. Doyle & Broumand, L.L.P., New York City (Michael B. Doyle of counsel), for PropertyManagement Group, respondent. Nicolini, Paradise, Ferretti & Sabella, Mineola (Barbara L. Hall of counsel), for MetropolitanAssets, respondent. Andrew M. Cuomo, Attorney General, New York City (Steven Segall of counsel), forWorkers' Compensation Board, respondent.
Spain, J. Appeal from a decision of the Workers' Compensation Board, filed February 23,2006, which ruled, among other things, that a general employment relationship existed betweenclaimant and Two-Three-Nought-Four Associates.
Claimant sustained a back injury and an umbilical hernia in September 1994 while [*2]performing his job as superintendent of a building located at 2304Sedgewick Avenue in the Bronx (hereinafter the building); he filed a claim for workers'compensation benefits the following year. In a decision dated September 2000, a Workers'Compensation Law Judge (hereinafter the WCLJ) determined—after a hearing—thatclaimant had been permanently partially disabled as a result of his work-related injury andestablished his average weekly wage. The WCLJ also determined that the building owner,Two-Three-Nought-Four Associates (hereinafter 2304 Associates), as claimant's employer, wasfully liable for the award and fined 2304 Associates for its failure to maintain workers'compensation insurance.
2304 Associates thereafter applied for full Workers' Compensation Board review. The Boardissued a lengthy panel decision in April 2002 which, given the conflicting and incompleteevidence in the record, determined that additional evidence was necessary with regard to theissues of employer-employee relationships and general-special employment, requiring the partiesto provide testimony and other relevant documentary evidence.
Over the next two years, hearings were conducted which included the testimony of, amongothers, claimant and Alfred Groner, who was the principal of Metropolitan Assets, Inc. (thegeneral partner of 2304 Associates, a limited partnership). Also testifying were Victor Owen,who had formed the corporation—Property Management Group (hereinafterPMG)—hired by Groner to manage the building, and Jose Vargas, the PMG supervisorover claimant.
At the close of proof, the WCLJ issued a decision finding that, on the date of claimant'saccident, PMG was claimant's general employer and 2304 Associates was his special employerand that, "based upon the overwhelming benefit to the special employer's [i.e., 2304 Associates']property resulting from the claimant's employment," 100% of the liability should be placed upon2304 Associates. Due to 2304 Associates' failure to procure workers' compensation insurance inviolation of Workers' Compensation Law §§ 50 and 26-a, the WCLJ assessedpenalties and directed 2304 Associates to pay all of claimant's medical bills andpreviously-rendered awards.
2304 Associates filed applications for full Board review of the decision. In its February 2006decision, the Board denied 2304 Associates' request to reconsider the "accident, notice and causalrelationship" issues, and found that 2304 Associates was claimant's general employer while PMGwas the special employer, modifying the WCLJ decision to that extent. Otherwise the Boardconfirmed the determination that full liability rested with 2304 Associates based upon itsoverwhelming control over and benefit from the premises where claimant's accident occurred.2304 Associates now appeals.
The principal contention raised by 2304 Associates on appeal is that the Board erred infinding that it was claimant's general employer—or that it had any employmentrelationship with him—and in holding it fully liable for his claim. We disagree. TheBoard's categorization of a claimant as a general employee of one entity and a special employeeof another is ordinarily a factual determination which will be upheld if the record containssubstantial evidence to support it (seeMatter of Arteaga v ISS Quality Serv., 14 AD3d 951, 952 [2005]; see alsoThompson v Grumman Aerospace Corp., 78 NY2d 553, 557-559 [1991]; Matter of Hasbrouck v International Bus.Machs. Corp., 38 AD3d 1146, 1147-1148 [2007]). This determination involvesconsideration of myriad factors, "and generally no one [factor] is decisive" (Thompson vGrumman Aerospace Corp., 78 NY2d at 558). The Board's finding that claimant's generalemployer was 2304 Associates was based upon documentary evidence andtestimony—including [*3]that of Owen (PMG's principal),which the Board credited. We find full record support for the Board's conclusion that "allsubstantive decisions regarding management and control of the property at 2304 SedgewickAvenue, including decisions regarding the superintendent of this building [i.e., claimant], weremade exclusively by Alfred Groner through the entity 2304 Associates." Owen testified thatPMG managed approximately 20 to 30 buildings owned by 2304 Associates, collecting rents andpaying bills for the owner; by agreement between Groner and PMG, the responsibility forobtaining workers' compensation coverage for nonoffice, nonadministrative workers in thosebuildings—such as superintendents—always remained with 2304 Associates, as thebuilding owner. Groner hired and fired building superintendents in buildings owned by 2304Associates and set their wages and hours, which were paid by PMG acting as agent of 2304Associates, out of building rents collected by PMG; 2304 Associates issued employee taxdocuments and was listed as the employer on claimant's W-2 tax forms in 1994 and 1995.Vargas, PMG's supervisor at the time, testified to overseeing claimant's maintenance and repairwork on a regular basis, and that both he and claimant took direction from Groner.
While Groner and claimant, in part, testified at variance with the foregoing, "[t]he Board isvested with the discretion to weigh conflicting evidence and evaluate the credibility of witnesses,and its resolution of such matters must be accorded great deference" (Matter of Papadakis v Volmar Constr.,Inc., 17 AD3d 874, 875 [2005] [citation omitted]). Since substantial evidence supportsthe Board's conclusion—which turned largely on credibility assessments—that 2304Associates was claimant's general employer and that PMG "only provided administrativeservices" to 2304 Associates, we confirm, notwithstanding that the record might also support adifferent finding (see Matter of Ribar v County of Suffolk, 125 AD2d 801, 802 [1986]).
Further, the Board rationally imposed 100% of the liability for this claim upon 2304Associates, based upon the employer's "overwhelming control" over the building as owner andthe "overwhelming benefit" to it from claimant's employment. Notably, "if there is both a generaland a special employer the [B]oard can make an award against either or both of the employers asit sees fit" (Matter of Arteaga v ISS Quality Serv., 14 AD3d at 953, quoting Matter ofBaker v Burnett's Contr. Co., 40 AD2d 741, 741-742 [1972]; see Matter of Kemp v Cityof Hornell, 250 AD2d 950, 951 [1998]). On the facts of this case, we discern no groundsupon which to disturb that apportionment determination (see Matter of Cook v Buffalo Gen.Hosp., 308 NY 480 [1955], affg 283 App Div 899 [1954]; Matter of Baker vBurnett's Contr. Co., 40 AD2d at 741-742).
Finally, contrary to 2304 Associates' appellate claims, the Board correctly determined thatneither 2304 Associates nor the building was covered under the workers' compensation policiesissued by the State Insurance Fund to Metropolitan Assets (the general partner of 2304Associates, of which Groner was the principal) or to PMG. At the June 2004 hearing devoted tothis issue, the State Insurance Fund's underwriter testified that Metropolitan's 1988 workers'compensation policy covered, in addition to Metropolitan, only specified limited partners andproperties at specific addresses; 2304 Associates and this building were not among them. PMG'sworkers' compensation policy covered only its clerical staff and executive officers, as Owentestified later, consistent with the agreement between PMG and Groner for 2304 Associates toprocure such coverage for its building and employees. Mindful that the Board's conclusionsregarding the scope of coverage of workers' compensation policies will not be disturbed wherethey are supported by substantial evidence (see Matter of Cacciatore v AJ Hunter Constr.Co., 7 [*4]AD3d 900, 901 [2004], appeal dismissed andlv denied 3 NY3d 735 [2004]; Matter of Ayers v Hakes, 260 AD2d 975, 976 [1999]),we uphold the Board's finding of noncoverage as supported by the documentary evidence andtestimony credited by the Board.
The remaining contentions, which do not require further discussion, lack merit.
Mercure, J.P., Carpinello, Mugglin and Kane, JJ., concur. Ordered that the decision isaffirmed, without costs.