SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
December 23, 1968
IN THE MATTER OF THE CLAIM OF SALVATORE DUGO, RESPONDENT,
SHEET METAL MANUFACTURING CO., INC. ET AL., APPELLANTS. WORKMEN'S COMPENSATION BOARD, RESPONDENT
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board which found the claimant to be the employee of the appellant employer (Sheet Metal) and affirmed an award of benefits.
Herlihy, J. Gibson, P. J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Herlihy, J.
The claimant was employed on a full-time basis by the New York City Transit Authority and in addition to such employment, he undertook the repair of windows for Sheet Metal. The record shows that prior to his injury on November 3, 1965, the claimant had worked some 36 or 37 hours for Sheet Metal. He was paid $3 per hour and was required to use a time clock to verify his hours. He worked at his own convenience and without any direct supervision. Sheet Metal supplied all materials and tools necessary to accomplish the work. Sheet Metal made no withholding deductions from the earnings of claimant and the claimant apparently reported these amounts on his income tax returns. The sole issue upon this appeal is the status of the claimant as an employee of Sheet Metal.
Decision affirmed, with costs to the Workmen's Compensation Board.
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