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In the Matter of the Claim of v. Solomon Oliver Mechanical

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


January 5, 2012

IN THE MATTER OF THE CLAIM OF EDWARD BLOTKO, APPELLANT,
v.
SOLOMON OLIVER MECHANICAL
CONTRACTING ET AL., RESPONDENTS. WORKERS' COMPENSATION BOARD, RESPONDENT.

Appeal from a decision of the Workers' Compensation Board, filed September 3, 2009, which ruled that claimant was not an employee of Solomon Oliver Mechanical Contracting and denied his claim for workers' compensation benefits.

The opinion of the court was delivered by: Mercure, Acting P.J.

MEMORANDUM AND ORDER

Calendar Date: November 22, 2011

Before: Mercure, Acting P.J., Peters, Rose, Lahtinen and Garry, JJ.

On June 9, 2008, claimant sustained injuries at a building that was being demolished by Solomon Oliver Mechanical Contracting (hereinafter SOMC), the company that submitted the winning bid for the job. It is undisputed that claimant had unsuccessfully bid for the demolition job 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 could work at the demolition site. Oliver agreed and claimant dropped off workers at the job site on two mornings prior to his accident. According to claimant, Oliver had also hired him to work at the site as a laborer and he sought workers' compensation benefits as a result. Oliver denied hiring claimant, however, and SOMC's workers' compensation carriers disputed claimant's claim for benefits. A Workers' Compensation Law Judge found that an employer-employee relationship did not exist between claimant and SOMC. Upon review, the Workers' Compensation Board affirmed, prompting this appeal by claimant.

We affirm. "The existence of an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its finding must be upheld if it is supported by substantial evidence" (Matter of Mendoza v Dolgetta, 81 AD3d 1043, 1044 [2011] [internal quotation marks and citation omitted]; see Matter of Duma v Baca, 83 AD3d 1228, 1228 [2011]). Here, there is substantial evidence supporting the Board's conclusion that Oliver did not hire claimant to perform demolition work at the time of the accident. The opposing testimony from claimant and his witnesses created a credibility issue for 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 claimant was not SOMC's employee.

Peters, Rose, Lahtinen and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120105

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