| Matter of Nkrumah v Thomas |
| 2009 NY Slip Op 03439 [61 AD3d 1325] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Michael Nkrumah, Respondent, vMarion A. Thomas et al., Doing Business as Venesen Dispatch Company, Respondents, andUninsured Employers' Fund, Appellant. Workers' Compensation Board,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Iris A. Steel of counsel), forWorkers' Compensation Board, respondent.
Kane, J. Appeal from a decision of the Workers' Compensation Board, filed February 27,2008, which, among other things, ruled that an employer-employee relationship existed betweenclaimant and Venesen Dispatch Company.
Claimant was injured in a car accident while driving a passenger for hire in a vehicle withNew York City Taxi and Limousine Commission (hereinafter TLC) license plates registered toVenesen Dispatch Company. Claimant leased the vehicle from Venesen two days per week at arate of $50 per 12-hour shift. Although the vehicle was a livery cab, which is only authorized topick up passengers by prearrangement through a licensed base (see 35 RCNY 6-16 [f]),the vehicle did not have a dispatch radio and claimant picked up passengers through street hails.After claimant filed a claim for workers' compensation benefits, an investigation revealed that[*2]Venesen did not carry workers' compensation insurance, sothe Uninsured Employers' Fund (hereinafter UEF) would be responsible for any benefitsawarded (see Workers' Compensation Law § 26-a [1] [a]). A Workers'Compensation Law Judge conducted a hearing and determined, among other things, that anemployer-employee relationship existed between Venesen and claimant. Upon UEF's request forreview, the Workers' Compensation Board affirmed. UEF now appeals.
The Board's determination that Venesen and claimant had an employer-employeerelationship is supported by substantial evidence (see Matter of Colin v Express Private Car & Limousine Serv., Inc., 16AD3d 854, 855 [2005]; Matter of Singleton v Angora, 299 AD2d 620, 621 [2002]).For workers' compensation purposes, part of the statutory definition of employer is an individualor entity "who leases or otherwise contracts with an operator or lessee for the purpose of driving,operating or leasing a taxicab as so defined in" Vehicle and Traffic Law § 148-a (Workers'Compensation Law § 2 [former (3)]).[FN1]A corresponding definition of employee is contained in the next subdivision, which also refers tothe Vehicle and Traffic Law definition of "taxicab" (see Workers' Compensation Law§ 2 [former (4)]). Vehicle and Traffic Law § 148-a defines "taxicab" as "[e]verymotor vehicle, other than a bus, used in the business of transporting passengers forcompensation, and operated in such business under a license or permit issued by a localauthority."[FN2]
Here, Venesen leased the vehicle to claimant, who operated it to pick up passengers forcompensation. The vehicle had TLC license plates and claimant testified that he possessed ahack license, which would permit him to drive for-hire vehicles. These facts provide substantialevidence for the Board's determinations that the vehicle fell under the statutory definition oftaxicab, and Venesen and claimant fell within the presumptive definitions of employer andemployee (see Honey Enters. Inc., 1995 WL 317057 [WCB No. 09248634, May 18,1995]). Claimant's violation of TLC regulations—by picking up street hails in a livery cab(see 35 RCNY 6-01, 6-16 [f])—does not alter his status as an employee or thevehicle's status as a taxicab under Vehicle and Traffic Law § 148-a (see MalcolmRadio Group Inc., 2005 WL 2376909, *2-3, 2005 NY Wrk Comp LEXIS 8329, *5 [WCBNo. 0031 0903, Sept. 23, 2005]).
Even though an employer-employee relationship was established, claimant can only receiveworkers' compensation benefits if his injury arose both out of and in the course of hisemployment (see Workers' Compensation Law § 10; Matter of McFarland vLindy's Taxi, Inc., [*3]49 AD3d 1111, 1112 [2008]).Claimant was injured while he was transporting a passenger. His injury clearly arose during thecourse of his employment, creating a presumption that it arose out of the scope of hisemployment (see Matter of Marotta vTown & Country Elec., Inc., 51 AD3d 1126, 1127 [2008]; Matter of McFarland vLindy's Taxi, Inc., 49 AD3d at 1112). While UEF asserts that claimant engaged in illegalactivity by picking up street hails, thus removing his actions from the scope of his employment,the Board reasonably disagreed. Based on Venesen's provision of a vehicle without a dispatchradio and claimant's testimony that his employer expected him to pick up street hails, Venesenwas aware of, and either tolerated or outright encouraged, violation of TLC rules. Under thecircumstances, we find disingenuous any argument on behalf of the employer that claimant'sconduct should be considered outside the scope of employment and preclude him from receivingworkers' compensation benefits (see Matter of Richardson v Fiedler Roofing, 67 NY2d246, 252-253 [1986]; Malcolm Radio Group Inc., 2005 WL 2376909, *3-5, 2005 NYWrk Comp LEXIS 8329, *5-12; see also Nelus Julot & Plaisimon Marceh, 2005 WL2249381, *3, 2005 NY Wrk Comp LEXIS 7956, *6-7 [WCB No. 0043 4869, Sept. 12, 2005]).
Cardona, P.J., Peters, Lahtinen and McCarthy, JJ., concur. Ordered that the decision isaffirmed, without costs.
Footnote 1: This portion of the definitioncontains an exception with additional considerations for owners who themselves drive thetaxicab an average of 40 or more hours per week. Based upon the record, that exception is notrelevant here.
Footnote 2: While TLC regulations providea different definition of "taxicab" (see 35 RCNY 2-01), that definition is irrelevant to thequestion of an employer-employee relationship for workers' compensation purposes becauseWorkers' Compensation Law § 2 specifically refers to the definition of "taxicab" underVehicle and Traffic Law § 148-a (see Livery Owners Coalition of N.Y. v State Ins.Fund, 152 Misc 2d 905, 907 [1992]).