| Matter of Lai Pock Lew v Younger |
| 2010 NY Slip Op 00427 [69 AD3d 1161] |
| January 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Lai Pock Lew, Respondent, v RichardYounger, Appellant, et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Steven Segall of counsel), forWorkers' Compensation Board, respondent.
Lahtinen, J. Appeal from a decision of the Workers' Compensation Board, filed June 23,2008, which, among other things, ruled that an employer-employee relationship existed betweenclaimant and Richard Younger.
Claimant, a cleaner, sought workers' compensation benefits after he was allegedly injured inthe course of his employment for Richard Younger, a site manager who arranged for the upkeepof a number of buildings. In 2007, the Workers' Compensation Board reversed a 2006 decisionby a Workers' Compensation Law Judge that disallowed the claim on the ground that claimantwas an independent contractor and determined that claimant was employed by Younger,established the claim for head and neck injuries and restored the case to the calendar. A Workers'Compensation Law Judge thereafter issued a decision which, among other things, set claimant'saverage weekly wage and made an award. Younger and others sought review, again arguing thatclaimant was either an independent contractor or in the employ of the owner of the buildingwhere he was injured. In 2008, the Board declined to revisit the employer-employee relationshipissue and affirmed, and Younger appeals.
We affirm. Initially, as the Board concedes, the issue of employer-employee relationship isproperly before us. The Board did not affirm the award in this case until its 2008 decision and, asa result, Younger could elect to seek review of the issue upon an appeal from that finaldetermination (see Matter of Hiser vRichmor Aviation, Inc., 52 AD3d 915, 916 [2008]; Matter of Donovan vKnickerbocker Warehousing Corp., 72 AD2d 870 [1979]).
Turning to the merits, the Board's determination that an employer-employee relationshipexists will be upheld if supported by substantial evidence (see Matter of El Hassanein v Yankee Stop Corp., 64 AD3d 824[2009], lv denied 13 NY3d 708 [2009]). In making that determination, relevantconsiderations for the Board "include the right to control the work, the method of payment, theright to discharge and the relative nature of the work; however, no single factor is dispositive"(Matter of Sang Hwan Park v Lee,53 AD3d 936, 938 [2008]; seeMatter of Tully v Live Right Realty Corp., 36 AD3d 1108, 1109 [2007]). In this case,Younger hired claimant to clean multiple buildings and paid him a fixed amount per week bycheck. Claimant testified that he worked for Younger exclusively and that Younger told himwhere to work as well as what work to do. A representative of the building's owner agreed thatYounger instructed and supervised claimant, stating that he would ordinarily contact Younger ifclaimant was required to do specific cleaning work. Substantial evidence accordingly exists fromwhich the Board could discern an employer-employee relationship between Younger andclaimant, notwithstanding evidence that could permit a different result (see Matter of Pilku v 24535 OwnersCorp., 19 AD3d 722, 723-724 [2005]).
Mercure, J.P., Peters, Kavanagh and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.