| Matter of Perez v Licea |
| 2010 NY Slip Op 05635 [74 AD3d 1672] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Edgar Ruano Perez, Appellant, v LuisLicea, Respondent, and 2180 Realty Corporation et al., Respondents, and Rochdale InsuranceCompany, Appellant. Workers' Compensation Board, Respondent. |
—[*1] Foley, Smit, O'Boyle & Weisman, New York City (David L. Wecker of counsel), forRochdale Insurance Company, appellant. O'Connor Redd, L.L.P., White Plains (Amy L. Fenno of counsel) for 2180 RealtyCorporation, respondent. Kim Stuart Swidler, Uninsured Employers' Fund, Albany, for Uninsured Employers' Fund,respondent.
Egan Jr., J. Appeals (1) from a decision of the Workers' Compensation Board, filed April 6,2009, which, among other things, ruled that an employer-employee relationship existed betweenclaimant and 2180 Realty Corporation, and (2) from a decision of said Board, filed October 16,2009, which denied claimant's request for reconsideration or full Board review.
Joseph Edelman is the owner and sole officer of 2180 Realty Corporation, which, in turn,owns an apartment building located at 2180 Holland Avenue in the Bronx. In August 2006,Edelman asked Luis Licea to perform maintenance work on an apartment in the building. Licearequested that claimant assist him and claimant sustained injuries in an explosion that occurredwhile the work was being performed. After claimant applied for workers' compensation benefits,hearings were held to determine whether claimant was an employee of Licea or 2180 Realty. AWorkers' Compensation Law Judge ruled that Licea was the general employer liable for 75% ofclaimant's workers' compensation award and that 2180 Realty, as claimant's special employer,was liable for the remaining 25%. Both claimant and Rochdale InsuranceCompany—2180 Realty's workers' compensation carrier—sought review of thatdecision, arguing that the Workers' Compensation Law Judge erred in finding that a specialemployment relationship existed between claimant and 2180 Realty. The Workers'Compensation Board upheld the determination and likewise denied both parties' requests for fullBoard review or reconsideration. These appeals ensued.[FN1]
The Board's factual determination that a general employee of one employer is a specialemployee of another must be upheld if it is supported by substantial evidence (see Matter of Victor v Steel Style, Inc.,56 AD3d 1099, 1099 [2008]). Factors indicative of a special employment relationshipinclude the furnishing of equipment, the method of payment, the relative nature of the work, theright to discharge and the right to control (see Matter of Shoemaker v Manpower, Inc.,223 AD2d 787, 787-788 [1996], lv dismissed 88 NY2d 874 [1996]). While no singlefactor is dispositive, "it has been held that the key to the determination is who controls anddirects the manner, details and ultimate result of the employee's work" (id. at 788).
Here, Licea testified that Edelman specifically instructed him to employ additionalworkers—and claimant in particular—on the project because it required a great dealof work and needed to be finished quickly. In that regard, while work in the apartment wasoriginally completed by the end of September 2007, Edelman stated that "his office" directedthat Licea return to the apartment the next month and refinish the floors because a prospectivetenant was unhappy with the way they looked. Claimant, Licea and a third worker were doing sowhen the explosion occurred. Hours later, Edelman informed investigators from the firedepartment that Licea was his maintenance worker and that Licea had "hired the two men whohad been injured in the fire." Notably, however, Licea testified that he did not consider himselfto be the "boss" of the two other workers and that payment received for the job was to be splitevenly amongst the [*2]three of them.[FN2]
Moreover, Licea informed the fire department officials that he did not have a contractor'slicense and that work in the apartment was being performed under Edelman's license. In additionto admitting that he had such a license, Edelman testified that he supplied all of the workmaterials to be used in the apartment and directed that only those specific materials be employed.Inasmuch as the foregoing amply supports the Board's decision, we find no basis upon which todisturb it (see Matter of Hasbrouck vInternational Bus. Machs. Corp., 38 AD3d 1146, 1147-1148 [2007]; Matter of Arteaga v ISS Quality Serv.,14 AD3d 951, 953 [2005]). To the extent that evidence in the record might support adifferent result, we note only that "the Board was entitled to resolve the conflicting evidencebased upon its assessment of the witnesses' credibility and the reasonable inferences drawntherefrom" (Matter of Topper v Cohen's Bakery, 295 AD2d 872, 873 [2002]; accordMatter of Victor v Steel Style, Inc., 56 AD3d at 1101). Rochdale's remaining argument hasbeen reviewed and determined to be without merit.
Rose, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the decisions are affirmed,without costs.
Footnote 1: Although claimant andRochdale have each appealed from the Board's underlying decision, only claimant has appealedfrom the Board's denial of his request for full Board review or reconsideration; however,claimant's appeal from that denial is deemed abandoned as he did not raise any issues withrespect thereto in his brief on appeal (see Matter of Church v Arrow Elec., Inc., 69 AD3d 983, 984 n 3[2010]).
Footnote 2: Although Edelman paid Liceadirectly and Licea then paid the two workers, Licea testified that such an arrangement wasnecessary because neither of the two workers had provided him with necessary payrollinformation. According to Licea, Edelman requested the workers' payroll information duringtheir initial discussion about the job.