| Matter of Blotko v Solomon Oliver Mech. Contr. |
| 2012 NY Slip Op 00061 [91 AD3d 990] |
| Jnury 5, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Edward Blotko,Appellant, v Solomon Oliver Mechanical Contracting et al., Respondents. Workers'Compensation Board, Respondent. |
—[*1] Weiss, Wexler & Wornow, P.C., New York City (Michael J. Reynolds of counsel), forSolomon Oliver Mechanical Contracting and another, respondents.
Mercure, A.P.J. Appeal from a decision of the Workers' Compensation Board, filedSeptember 3, 2009, which ruled that claimant was not an employee of Solomon OliverMechanical Contracting and denied his claim for workers' compensation benefits.
On June 9, 2008, claimant sustained injuries at a building that was being demolished bySolomon Oliver Mechanical Contracting (hereinafter SOMC), the company that submitted thewinning bid for the job. It is undisputed that claimant had unsuccessfully bid for the demolitionjob for his own company. After his bid was turned down, claimant spoke with SOMC's owner,Solomon Oliver, about whether some of the laborers who had worked for his company couldwork at the demolition site. Oliver agreed and claimant dropped off workers at the job site ontwo mornings prior to his accident. According to claimant, Oliver had also hired him to work atthe site as a laborer and he sought workers' compensation benefits as a result. Oliver deniedhiring claimant, however, and SOMC's workers' compensation carriers disputed claimant's claimfor benefits. A Workers' Compensation Law Judge found that an employer-employee [*2]relationship did not exist between claimant and SOMC. Uponreview, the Workers' Compensation Board affirmed, prompting this appeal by claimant.
We affirm. "The existence of an employer-employee relationship in a particular case is afactual issue for the Board to resolve and its finding must be upheld if it is supported bysubstantial evidence" (Matter ofMendoza v Dolgetta, 81 AD3d 1043, 1044 [2011] [internal quotation marks and citationomitted]; see Matter of Duma vBaca, 83 AD3d 1228, 1228 [2011]). Here, there is substantial evidence supporting theBoard's conclusion that Oliver did not hire claimant to perform demolition work at the time ofthe accident. The opposing testimony from claimant and his witnesses created a credibility issuefor the Board to resolve (see Matter of Mendoza v Dolgetta, 81 AD3d at 1044). Thus,despite proof in the record that would support a contrary conclusion (see Matter of Lai Pock Lew v Younger,69 AD3d 1161, 1162 [2010]), we find no basis to disturb the Board's decision that claimantwas not SOMC's employee.
Peters, Rose, Lahtinen and Garry, JJ., concur. Ordered that the decision is affirmed, withoutcosts.