| Matter of Molina v Lopano |
| 2008 NY Slip Op 00309 [47 AD3d 1083] |
| January 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Omar Molina, Respondent, v RockyLopano, Appellant and FD Property Holding, Inc., et al., Respondents. Workers' CompensationBoard, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forWorkers' Compensation Board, respondent.
Cardona, P.J. Appeal from a decision of the Workers' Compensation Board, filed February15, 2006, which denied Rocky Lopano's request for reconsideration or full Board review.
Claimant was injured in 2002 and filed a claim for workers' compensation benefits listingFresh Direct c/o FD Property Holding, Inc. (hereinafter FD Property) as his employer however,FD Property denied that an employer-employee relationship existed with claimant. Following ahearing, a Workers' Compensation Law Judge (hereinafter WCLJ), in a decision filed July 23,2004, determined, among other things, that Rocky Lopano, doing business as Rocky LopanoConstruction (hereinafter the employer), a subcontractor working for FD Property, was claimant'semployer and levied assessments against the employer for failure to have workers' compensationcoverage at the time of the accident.[*2]
The employer applied for review of the WCLJ's decisionbefore the Workers' Compensation Board on July 29, 2004, but was informed by the Board thatthe application failed to comply with requirements set forth in 12 NYCRR 300.13 and was given30 days to fully comply. In November 2004, the employer again applied for Board reviewwithout complying with the regulation. In a decision filed March 2, 2005, the Board deniedreview of the WCLJ's decision based on the employer's failure to comply with 12 NYCRR300.13 (a) and (e) (1) (ii). In November 2005, the employer once again requested full Boardreview or, alternatively, a rehearing of the WCLJ's decision. In a decision filed February 15,2006, the Board denied the application for review as untimely and refused to grant a rehearing.The employer now appeals.
Initially, we note that inasmuch as the employer appeals from the denial of his request for arehearing or full Board review of the claim, the merits of the Board's underlying determination ofan employer-employee relationship in this matter are not properly before us (see Matter of Doherty v Colgate Univ.,3 AD3d 810, 810 [2004]; Matter of Palma v New York City Dept. of Corrections,301 AD2d 774, 774 [2003]). Our review is therefore limited to whether, by denying the requestfor a rehearing or full Board review, the Board abused its discretion or acted in an arbitrary andcapricious manner (see Matter of Depewv Lancet Arch, 2 AD3d 1013, 1013 [2003]; Matter of Macareno v Son YengProduce, 305 AD2d 928, 929 [2003]).
The employer's request for a rehearing was premised on an affidavit from FD Property's chiefexecutive officer at the time of claimant's injury. The employer, however, has failed todemonstrate that this evidence was unavailable at the time of the hearing. Under thesecircumstances, we cannot say that it was an abuse of discretion or arbitrary and capricious for theBoard to have denied the employer's application (see 12 NYCRR 300.14 [a] [1];Matter of Depew v Lancet Arch, 2 AD3d at 1014; Matter of Palma v New York CityDept. of Corrections, 301 AD2d at 775; Matter of Shell v Poughkeepsie Hous. Auth.,276 AD2d 843, 845 [2000], appeal dismissed 96 NY2d 731 [2001]).
Peters, Spain, Rose and Kane, JJ., concur. Ordered that the decision is affirmed, withoutcosts.