| Matter of Mamaroneck Vil. Tile Distribs., Inc. v Workers'Compensation Bd. |
| 2009 NY Slip Op 09358 [68 AD3d 1423] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Mamaroneck Village Tile Distributors, Inc.,Appellant, v Workers' Compensation Board, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Paul Groenwegen of counsel), forrespondent.
Lahtinen, J. Appeal from a decision of the Workers' Compensation Board, filed October 10,2008, which denied the application of Mamaroneck Village Tile Distributors, Inc. forredetermination review of a stop-work order issued pursuant to Workers' Compensation Law§ 141-a.
On September 12, 2008, an investigator for the Workers' Compensation Board, GlennMuller, inquired at Mamaroneck Village Tile Distributors, Inc. as to whether the company hadworkers' compensation insurance. Muller made this inquiry because an individual had filed a C-3form claiming to have been injured while working for Mamaroneck. The company's president,Jonathan Mammana, told Muller that the company had no employees and therefore did not haveworkers' compensation insurance. Muller entered a rear work area, which was shared byMamaroneck with an ironworking company, where he observed two men both wearing T-shirtswith the words "Mamaroneck Village Tile" printed on them. The men were cutting stone on awet saw. Since the men did not answer when Muller asked a question in English, Muller spokein Spanish and one man reportedly responded in Spanish indicating that he had worked forMamaroneck for two years. Based upon this information, a stop-work order was issued that dayagainst Mamaroneck.[*2]
Supported by an affidavit of Mammana, sworn toSeptember 19, 2008 asserting that Mamaroneck had no employees, the company made anapplication seeking redetermination review of the order (see Workers' CompensationLaw § 141-a [4] [a]). A hearing was held on October 3, 2008 before a Workers'Compensation Law Judge (hereinafter WCLJ). The Uninsured Employers' Fund produced Mullerto testify in support of the stop-work order. Mammana then testified for Mamaroneck. TheWCLJ credited the testimony of Muller and, in a decision filed October 10, 2008, upheld thestop-work order. Mamaroneck appeals.
Workers' Compensation Law § 141-a was enacted in 2007 to provide "the Chairadditional enforcement authority against employers who do not properly provide coverage fortheir employees" (Minkowitz, Supp Practice Commentaries, McKinney's Cons Laws of NY,Book 64, Workers' Compensation Law § 141-a, 2009 Pocket Part, at 96; see L2007, ch 6, § 12). As relevant here, the statute deems the failure of an employer to carryworkers' compensation insurance to be "an immediate serious danger to public health, safety orwelfare sufficient to justify service by the chair of a stop-work order" (Workers' CompensationLaw § 141-a [4] [a]). Expeditious review of a stop-work order is afforded under thestatute. While the precise procedures for such review are not spelled out in detail in the statute,the procedures used by the Chair in this case after receiving the timely affidavit on behalf ofMamaroneck included conducting a prompt hearing before a WCLJ at which the UninsuredEmployers' Fund set forth its proof in support of the stop-work order and Mamaroneck had anopportunity to produce evidence in support of its contention that it had no employees. A decisionfollowed without delay. These procedures accorded ample due process protection toMamaroneck (see Mathews v Eldridge, 424 US 319, 335 [1976]; Matter ofTranscontinental Refrigerated Lines v Workers' Compensation Bd., 269 AD2d 714, 716[2000]).
Mamaroneck argues that the decision upholding the stop-work order and denying itsapplication for redetermination was not supported by substantial evidence. Since there is nodispute that Mamaroneck did not have workers' compensation insurance, the dispositive issuenarrows to whether substantial evidence supported the determination that the company hademployees (see Matter of El Hassanein v Yankee Stop Corp., 64 AD3d 824 [2009],lv denied 13 NY3d 708 [2009]; Matter of Jin Liu v Tak Chan Yeung, 15 AD3d752, 752 [2005]). Substantial evidence includes "such relevant proof as a reasonable mind mayaccept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. vState Div. of Human Rights, 45 NY2d 176, 180 [1978]; see Matter of Howell v LangieFuel Serv., 241 AD2d 568, 570 [1997]; Matter of Manning v Niagara Mohawk PowerCorp., 233 AD2d 803, 804 [1996], lv dismissed 89 NY2d 1029 [1997]).
Here, Muller testified that he saw two men in a back area of Mamaroneck's business. Thosemen were wearing T-shirts with Mamaroneck's name printed on them, they were cutting stone,and they were doing so with Mamaroneck's wet saw. Cutting stone was an activity consistentwith Mamaroneck's business and not with that of the other business that shared the space withMamaroneck. When questioned by Muller in Spanish, one of the men indicated that he hadworked for Mamaroneck for the previous two years. While this statement was hearsay, we notethat hearsay may be considered in this type of administrative hearing (see Matter of Gutierrezv Courtyard by Marriott, 46 AD3d 1241, 1243 [2007]), and the hearsay was not the onlyevidence supporting the determination in this case (cf. Matter of Russo v HRT, Inc. ofOrange County, 246 AD2d 933, 936 [1998], lv denied 91 NY2d 815 [1998]).Mammana acknowledged that the type of work he did could not always be accomplished by oneperson alone and, although he stated that in such circumstances he [*3]hired independent contractors, he produced no documentation orother evidence beyond his own statement supportive of such a relationship with any individuals.Accepting the WCLJ's determination that Muller's testimony was credible (see Matter of ElHassanein v Yankee Stop Corp., 64 AD3d at 824), the record contains substantial evidencesupporting the decision to uphold the stop-work order (cf. Matter of Carlson v Akin, 32AD3d 1131, 1132 [2006]; Matter of Davison v Holder, 137 AD2d 899, 900 [1988]).
Mercure, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.