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In the Matter of the Claim of v. Silver Construction Corporation

State of New York Supreme Court, Appellate Division Third Judicial Department


April 14, 2011

IN THE MATTER OF THE CLAIM OF LAWRENCE DOW, RESPONDENT,
v.
SILVER CONSTRUCTION CORPORATION, APPELLANT, AND TRAVELERS INSURANCE COMPANY, RESPONDENT. WORKERS' COMPENSATION BOARD, RESPONDENT.

The opinion of the court was delivered by: Egan Jr., J.

MEMORANDUM AND ORDER

Calendar Date: February 16, 2011

Before: Spain, J.P., Stein, McCarthy, Garry and Egan Jr., JJ.

Appeal from a decision of the Workers' Compensation Board, filed February 9, 2010, which, among other things, removed Rizzi Associates from notice as a potential employer.

Claimant applied for workers' compensation benefits in 2005, asserting that he suffers from a lung disease caused by workplace exposure to asbestos while employed by Silver Construction Corporation in 1961. Subsequently, Silver raised the issue that, in 1961, claimant was actually employed by its predecessor, Rizzi Associates, and a Workers' Compensation Law Judge, among other things, thereafter placed Rizzi on notice as a potential employer. On review, as relevant here, the Workers' Compensation Board found that there was insufficient evidence in the record to place Rizzi on notice as a potential employer, removed Rizzi from notice and continued the case to resolve the issue of an employer-employee relationship. Silver now appeals that decision.

Inasmuch as the Board's decision was interlocutory and did not dispose of all of the substantive issues or reach a potentially dispositive threshold legal issue, it is not appealable (see Matter of Ogbuagu v Ngbadi, 61 AD3d 1198, 1199 [2009]; Matter of Rivers v Blue Ridge Farms, Inc., 36 AD3d 1132, 1133 [2007]). Given that the Board continued the case to determine the issue of an employer-employee relationship, a review of the Board's decision here would result in a piecemeal review of the issues of the case, which should be avoided (see Matter of Ogbuagu v Ngbadi, 61 AD3d at 1199; Matter of Sawyer v Orange Motors, 24 AD3d 1117, 1117-1118 [2005]). As the non-final decision is reviewable upon an appeal of the Board's final decision (see Matter of Monzon v Sam Bernardi Constr., Inc. 47 AD3d 977, 978 [2008]; Matter of Wilson v Roselli Moving & Stor. Corp., 37 AD3d 959, 959 [2007]), this appeal must be dismissed.

Spain, J.P., Stein, McCarthy and Garry, JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110414

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