| Matter of Duma v Baca |
| 2011 NY Slip Op 02979 [83 AD3d 1228] |
| April 14, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Agim Duma,Claimant, v Gentian Baca, Doing Business as A&G Cleaning Services, Appellant.Workers' Compensation Board, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), forrespondent.
Peters, J.P. Appeal from a decision of the Workers' Compensation Board, filed October 5,2009, which ruled that an employer-employee relationship existed between claimant and GentianBaca, doing business as A&G Cleaning Services.
While making a delivery for Gentian Baca, doing business as A&G Cleaning Services(hereinafter A&G), claimant was struck by an automobile. Claimant sought workers'compensation benefits and, following hearings, a Workers' Compensation Law Judge determinedthat an employer-employee relationship existed between him and A&G. The Workers'Compensation Board affirmed upon review, and A&G now appeals.
We affirm. Whether an employer-employee relationship existed presents a factual issue forthe Board, and its determination thereof will not be disturbed if supported by substantial evidencein the record (see Matter of Enriquez vHome Lawn Care & Landscaping, Inc., 77 AD3d 1149, 1150 [2010]; Matter of Lai Pock Lew v Younger, 69AD3d 1161, 1162 [2010]). No single fact is dispositive in making that determination,including that a "non-employment [*2]application" signed byclaimant states that he was not A&G's employee (see Matter of Brown v City of Rome, 66 AD3d 1092, 1092[2009]).[FN*]Instead, the Board considers all relevant factors, such as "the right to control the work and set thework schedule, the method of payment, the furnishing of equipment, the right to discharge andthe relative nature of the work at issue" (Matter of Bugaj v Great Am. Transp., Inc., 20 AD3d 612, 614-615[2005]; see Matter of Enriquez v Home Lawn Care & Landscaping, Inc., 77 AD3d at1150). Here, A&G provided trucks for claimant, who made deliveries on a schedule and route setby it, and retained the right to discharge him upon notice. A&G bore the routine expensesassociated with the trucks, and claimant stated that A&G reimbursed him for tolls and any trafficfines imposed in the course of his work. Claimant and another driver further testified that A&Gpaid them a set weekly amount for their work. Notwithstanding evidence in the record that couldsupport a contrary result, we are satisfied that the foregoing constitutes substantial evidencesupporting the Board's determination that claimant was A&G's employee (see Matter of Joyner v Event DesignAssoc., Inc., 40 AD3d 1278, 1279-1280 [2007]; Matter of Fisher v KJ Transp., 27 AD3d 934, 935 [2006]).
We have considered A&G's remaining arguments and find them to be without merit.
Spain, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the decision is affirmed,without costs.
Footnote *: We note that claimant, whoneeded an interpreter to testify, stated that this document was not explained to him when hesigned it and that he did not understand it.