| Matter of Smallwood v Mereda Realty Corp. |
| 2010 NY Slip Op 06126 [75 AD3d 873] |
| July 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Willie Smallwood, Appellant, vMereda Realty Corporation, Respondent, and Pueblo Nuevo Associates et al., Respondents.Workers' Compensation Board, Respondent. |
—[*1] Gregory J. Allen, State Insurance Fund, New York City (Rudolph Rosa DiSant of counsel),for Pueblo Nuevo Associates and another, respondents.
Lahtinen, J. Appeal from a decision of the Workers' Compensation Board, filed December31, 2008, which ruled, among other things, that a general employment relationship existedbetween claimant and Pueblo Nuevo Associates.
Claimant, the superintendent of an apartment building owned by Pueblo Nuevo Associatesand managed by Mereda Realty Corporation, sustained injuries while providing maintenance atthe site. He received workers' compensation benefits and also commenced an action in SupremeCourt against both Pueblo and Mereda. A Workers' Compensation Law Judge determined thatclaimant was an employee of Mereda. The Workers' Compensation Board modified thatdetermination, finding that claimant was a general employee of Pueblo and a special employee ofMereda. The Board concluded that each entity was 50% liable for the claim. Claimant appeals,contending that he was not in an employment relationship with Pueblo.
[*2]"The existence of an employer-employee relationship isone for the Board to resolve in the first instance and its determination in that regard must beupheld if supported by substantial evidence, even if other evidence in the record could havesupported a contrary conclusion" (Matter of LaCelle v New York Conference ofSeventh-Day Adventists, 235 AD2d 694, 694 [1997], lv dismissed 89 NY2d 1085[1997], lv denied 96 NY2d 713 [2001] [citation omitted]; see Matter of Victor v Steel Style, Inc.,56 AD3d 1099, 1099 [2008]). "Although no single factor is dispositive, relevant factors tobe considered include the right to control the claimant's work, the method of payment, the rightto discharge, the furnishing of equipment and the relative nature of the work" (Matter ofSemus v University of Rochester, 272 AD2d 836, 837 [2000] [citations omitted]; seeThompson v Grumman Aerospace Corp., 78 NY2d 553, 558 [1991]). "[I]f there is both ageneral and a special employer the [B]oard can make an award against either or both of theemployers as it sees fit" (Matter of Baker v Burnett's Contr. Co., 40 AD2d 741, 741-742[1972]; accord Matter of Cabrera vTwo-Three-Nought-Four Assoc., 46 AD3d 1255, 1257 [2007]).
Here, there is evidence in the record that, although Mereda hired claimant, Pueblo retainedthe authority to fire him. As superintendent of the building, claimant was required to addressproblems with tenants and his day-to-day activities were directed by Mereda. However, part ofhis compensation included a rent-free apartment in Pueblo's building and he was paid fromPueblo's general payroll bank account. His paychecks contained the notation that they were fromMereda as agent for Pueblo. Pueblo listed claimant as its employee on its payroll and taxdocuments and it paid premiums for workers' compensation insurance intended to coverclaimant. Equipment used by claimant was ostensibly provided or paid for by Pueblo. Whilethere was an agreement between Mereda and Pueblo indicating that personnel employed tomanage the building would be employees of Mereda, the Board is not bound by the terms ofsuch an agreement and can make its own determination based upon the proof as to whether anemployment relationship existed between claimant and Pueblo (see Matter of Reyes vSouthern Blvd. Partners, 78 AD2d 746, 747 [1980], lv denied 52 NY2d 703 [1981]).Since there is substantial evidence supporting the Board's determination, we must affirm despitethe fact that the record contains evidence that could have supported a different conclusion(see Matter of Hutchinson v Fahs-Rolston Paving Co., 287 AD2d 936, 937 [2001];Matter of Semus v University of Rochester, 272 AD2d at 837).
Peters, J.P., Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed,without costs.