| Matter of Victor v Steel Style, Inc. |
| 2008 NY Slip Op 09328 [56 AD3d 1099] |
| November 26, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Thomas S. Victor II, Respondent, vSteel Style, Inc., et al., Respondents. Workers' Compensation Board, Respondent. PeriniCorporation et al., Appellants. |
—[*1] Finkelstein & Partners, L.L.P., Newburgh (Lawrence D. Lissauer of counsel), for Thomas S.Victor II, respondent. Andrew M. Cuomo, Attorney General, New York City (Iris A. Steel of counsel), forWorkers' Compensation Board, respondent.
Peters, J.P. Appeal from a decision of the Workers' Compensation Board, filed July 24, 2007,which ruled that Steel Style, Inc. was claimant's sole employer.
In November 2004, Steel Style, Inc. verbally agreed to provide the assistance of three of itsemployees, including claimant and his father, who was Steel Style's supervisor, to PeriniCorporation for the purpose of unloading steel beams from Perini's trucks. During the course ofthe work, the boom from a crane fell onto the trailer that claimant was unloading and struck him,causing severe injury. Claimant submitted a claim for workers' compensation benefits, namingSteel Style as his employer, while Perini alleged that claimant was its special employee on theday of the accident. A Workers' Compensation Law Judge ultimately found that Steel Style was[*2]the proper employer and that no special employmentrelationship existed between claimant and Perini. Upon review, the Workers' CompensationBoard affirmed. Perini appeals.
It is well settled that the question of whether a general employee of one employer is also aspecial employee of another is a factual issue for the Board to resolve and its determination mustbe upheld if supported by substantial evidence (see Matter of Hasbrouck v International Bus. Machs. Corp., 38 AD3d1146, 1147 [2007]; Matter ofArteaga v ISS Quality Serv., 14 AD3d 951, 952 [2005]). Factors relevant to determiningwhether a special employment relationship exists include "the right to control, the method ofpayment, the furnishing of equipment, the right to discharge and the relative nature of the work"(Matter of Shoemaker v Manpower, Inc., 223 AD2d 787, 787-788 [1996], lvdismissed 88 NY2d 874 [1996]; see Matter of Rosato v Thunderbird Constr. Co.,299 AD2d 670, 672 [2002], lv dismissed 100 NY2d 615 [2003], lv denied 1NY3d 509 [2004]). Although no single factor is determinative, a key element is "who controlsand directs the manner, details and ultimate result of the employee's work" (Thompson vGrumman Aerospace Corp., 78 NY2d 553, 558 [1991]; see Matter of Mehar v SkylineCredit Ride, 301 AD2d 808, 809 [2003]; Matter of Shoemaker v Manpower, Inc.,223 AD2d at 788). Therefore, "in the absence of a clear demonstration of surrender of control bythe general employer and assumption of control by the special employer, the general employmentis presumed to continue" (Matter of Oppedisano v Randall Elec., 285 AD2d 759, 760[2001]; see Thompson v Grumman Aerospace Corp, 78 NY2d at 557; Matter ofRosato v Thunderbird Constr. Co., 299 AD2d at 671).
Here, the work in question, although in furtherance of Perini's business, was performed onSteel Style's premises and with equipment, including a crane and rigging devices, provided bySteel Style. The evidence also established that Steel Style retained the three employees on itspayroll and paid them directly for the work performed on the date of the accident. According toDavid Plotkin, Steel Style's president, he retained the right to discharge or reprimand claimant,and specifically instructed claimant's father as to the work that was to be performed and that he"would be in charge of his men." Moreover, the evidence fails to sufficiently demonstrate thatPerini actually exerted control or authority over claimant or that claimant "was aware of andconsented to his special employee status" (Thompson v Grumman Aerospace Corp, 78NY2d at 558; see Murray v Union Ry. Co. of N.Y. City, 229 NY 110, 112-113 [1920];Matter of Fisher v KJ Transp., 27AD3d 934, 935 [2006]). Claimant, his father and the other Steel Style employee whoassisted in unloading the beams all testified that they were neither informed, nor under theimpression, that they were working for Perini, or that their employment status or relationshipwith Steel Style would be in any way affected. Indeed, claimant considered Plotkin to be his bossand his father to be his immediate supervisor for the work, and testified that on the day of theaccident he received directions only from his father and was never instructed by any Periniemployee. While Perini's on-site employee may have provided claimant's father with somegeneral instructions concerning placement of the steel beams, this conduct does not create aspecial employment relationship between Perini and the Steel Style employees (see Shermanv Reynolds Metals Co., 295 AD2d 843, 845 [2002]; see also Montalbano v Kurt Weiss Florist, 1 AD3d 414, 415[2003]).
Although Perini's witnesses provided a conflicting account as to who was in control of thework and which party was responsible for the payment of wages, "the Board was entitled toresolve the conflicting evidence based upon its assessment of the witnesses' credibility and thereasonable inferences drawn therefrom" (Matter of Topper v Cohen's Bakery, 295 AD2d872, 873 [2002]; see Matter ofPapadakis v Volmar Constr., Inc., 17 AD3d 874, 875 [2005]). We find [*3]the Board's resolution of these issues to be particularly appropriatein light of the fact that the only documentary evidence suggesting a special employmentrelationship was created after the accident occurred. As substantial evidence supports theBoard's determination that a special employment relationship did not exist between Perini andclaimant, "it is irrelevant that the evidence, as argued by [Perini], could support a differentconclusion" (Matter of Oppedisano v Randall Elec., 285 AD2d at 760; Matter ofJohnson v New York City Health & Hosps. Corp., 214 AD2d 895, 896 [1995], lvdenied 86 NY2d 707 [1995]).
Finally, we find no abuse of discretion in the Board's refusal to consider Perini's untimelyreply and sur-rebuttal (see 12 NYCRR 300.13 [e] [2]; Matter of Bordenet v Maines Paper & Food Serv., 50 AD3d 1276,1276 [2008]).
Rose, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the decision is affirmed,without costs.