| Matter of Deraway v Bulk Stor., Inc. |
| 2008 NY Slip Op 04592 [51 AD3d 1313] |
| May 22, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Carmen R. Deraway, Respondent, vBulk Storage, Inc., Respondent, and Virginia Surety Company, Also Known as CombinedSpecialty Insurance, et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Joseph B. Pachura Law Offices, Utica (Joseph B. Pachura of counsel), for Carmen R.Deraway, respondent. Wolff, Goodrich & Goldman, L.L.P., Syracuse (Robert E. Geyer Jr. of counsel), for BulkStorage, Inc., respondent. Andrew M. Cuomo, Attorney General, New York City (Steven Segall of counsel), forWorkers' Compensation Board, respondent.
Kavanagh, J. Appeal from a decision of the Workers' Compensation Board, filed March 9,2007, which ruled that claimant sustained a compensable injury and awarded workers'compensation benefits.[*2]
Claimant, a New York resident, was employed as acarpenter by an Illinois-based corporation that constructed prefabricated buildings used to storeroad salt. On December 20, 2004, while working for Bulk Storage, Inc. (hereinafter theemployer) in Pennsylvania, claimant was injured when a 1,800-pound wood panel fell on him.His original workers' compensation claim was filed in Illinois, however, it was denied for lack ofcoverage. Thereafter, claimant filed for workers' compensation benefits in New York and,following a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ) found thatclaimant had sustained a work-related injury and that sufficient contacts existed between hisemployment and New York to establish jurisdiction. The WCLJ also found that the employer'sworkers' compensation policy issued by Virginia Surety Company covered the claim andawarded benefits to claimant. Both Virginia and the employer filed separate applications forreview by the Workers' Compensation Board, each claiming that the decision should berescinded based on a lack of jurisdiction. The employer argued, alternatively, that if jurisdictionwas found to exist, its policy with Virginia should cover the claim. Virginia argued that its policyis not applicable to the claim and that the Uninsured Employment Fund should be heldresponsible for its payment. The Board affirmed the WCLJ's decision and Virginia and itsthird-party administrator (hereinafter collectively referred to as the carrier) nowappeal.[FN1]
For the Board to have jurisdiction over a claim arising from a work-related injury thatoccurred outside New York, it must determine whether there were sufficient and significantcontacts between the state and the employer to support a reasonable conclusion that theemployment was to some extent sited in this state (see Matter of Nashko v Standard WaterProofing Co., 4 NY2d 199, 201-202 [1958]; Matter of Sanchez v Clestra Cleanroom, Inc., 11 AD3d 781, 782[2004]; Matter of Edick v Transcontinental Refrigerated Lines, 300 AD2d 848, 848-849[2002]). In making that determination, the Board may consider, among other things, the extent towhich the employer conducted business in New York, whether the employee resides in NewYork, how the employee was recruited and hired by the employer, whether the employee wasexpected to return to New York after completing out-of-state work assignments for the employerand whether the employer routinely contacted the employee regarding work assignments whilethe employee was located in [*3]New York (see Matter ofNashko v Standard Water Proofing Co., 4 NY2d at 201; Matter of Bugaj v Great Am. Transp., Inc., 20 AD3d 612, 613-614[2005]; Matter of Williams v Roadkill, Inc., 277 AD2d 764, 765 [2000], lvdismissed 96 NY2d 824 [2001]). Here, prior to claimant's accident in Pennsylvania, he washired by the employer while he was employed by another entity on a project on Riker's Island.The employer, which was the general contractor for the Riker's Island project, required claimantas part of his employment to continue on the project until it was completed. Throughout hisemployment, claimant resided in New York and, whenever he performed work on projects for theemployer in other states, always returned to his New York residence upon their completion.Moreover, the record established that claimant worked on projects for the employer located inNew York and, also, when employed on projects outside New York, was notified about themwhile at his New York residence. Based on the foregoing, substantial evidence exists to supportthe Board's determination that the employer had significant contacts with New York as toestablish the Board's jurisdiction over this claim (see Matter of Edick v TranscontinentalRefrigerated Lines, 300 AD2d at 848-849).
Similarly unavailing is the carrier's argument that the workers' compensation policy it issueddid not provide coverage to claimant for this accident. The policy covers claims under workers'compensation statutes of other states if "[t]he employee claiming benefits was either hired undera contract of employment made in [Illinois] or was, at the time of the injury, principallyemployed in [Illinois]." In the policy, the carrier failed to define "principally employed" and, as aresult, any ambiguity as to the meaning of this phrase must be construed against it and in favor ofthe employer and claimant (see Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60NY2d 390, 398 [1983]; CommercialUnion Ins. Co. v Liberty Mut. Ins. Co., 36 AD3d 645, 645-646 [2007]; Barnhardt vHudson Val. Dist. Council of Carpenters Benefit Funds, 114 AD2d 701, 702-703 [1985]).Further, claimant received all of his work assignments during the course of his employment fromthe employer's office in Illinois and would routinely return to Illinois to meet and discuss projectswith the employer or its designated representative. In addition, claimant was provided with a cellphone with an Illinois phone number to be used during the course of his employment by theemployer. Based on these undisputed facts, we find that substantial evidence exists to support theBoard's determination that the employee, while a New York resident, was, in fact, principallyemployed in Illinois and that the carrier's policy covered this claim (see Matter of Cabrera vTwo-Three-Nought-Four Assoc., 46 AD3d 1255, 1258 [2007]).[FN2]
Mercure, J.P., Peters, Kane and Stein, JJ., concur. Ordered that the decision is affirmed,without costs.
Footnote 1: The notice of appeal filed by thecarrier mistakenly states that the employer was filing the notice of appeal. Also, the notice ofappeal was not timely served upon the employer. The carrier explains that the error on the noticeof appeal was merely typographical. Recognizing the lack of any prejudice to any party as a resultof either error, we utilize our discretionary power under CPLR 5520 (c) to correct the error andtreat the notice of appeal as an appeal from the carrier (see Matter of Barker v Buffalo Color Corp., 32 AD3d 1138, 1139[2006]), and we find that the carrier's failure to serve the employer with the notice of appeal doesnot render the notice of appeal invalid as the employer was obviously aware of the appeal, hadsufficient time to participate in the appeal and was not prejudiced by the carrier's neglect (seePeck v Ernst Bros., 81 AD2d 940, 941 [1981]).
Footnote 2: We do not agree with thecarrier's suggestion that a finding that New York has jurisdiction over this claim is somehowinconsistent with the conclusion that claimant was primarily employed in Illinois.