Calendar Date: November 13, 2017
McCambridge Singer & Mahoney, Ltd, New York City (Thomas
W. Park of counsel), for appellant.
Smit O'Boyle & Weisman, Hauppauge (Theresa E.
Wolinski of counsel), for Bloomingdale's Inc. and
Woolf, Goldman & Filpi, LLP, Mineola (Jonathan R. Klee of
counsel), for Cris Czajkowski, respondent.
T. Schneiderman, Attorney General, New York City (Marjorie S.
Leff of counsel), for Workers' Compensation Board,
Before: Garry, P.J., Clark, Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
July 25, 2016, which ruled, among other things, that an
employee-employer relationship existed between claimant and
Task Essential Corp. and awarded workers' compensation
fell on his way to a restroom while he was working as a
"skin care specialist and spokesmodel" in a
Bloomingdale's store. Claimant applied for workers'
compensation benefits based on claimed injuries and alleged
that, at the time of the accident, he was an employee of Task
Essential Corp., the owner of the skin care line. Following a
hearing, the Workers' Compensation Board found, among
other things, that claimant sustained an accidental injury
arising out of and in the course of his employment with Task
Essential and awarded workers' compensation benefits.
Task Essential now appeals. 
there exists an employer-employee relationship in a
particular case is a factual issue for the Board to resolve
and its determination will be upheld when supported by
substantial evidence" (Matter of Malave v Beef &
Bourbon, LLC, 114 A.D.3d 1006, 1007  [citations
omitted]; accord Matter of Saratoga Skydiving Adventures
v Workers' Compensation Bd., 145 A.D.3d 1333, 1334
). Relevant factors to this determination include
"the right to control the work and set the work
schedule, the method of payment, the furnishing of equipment,
the right to discharge and the relative nature of the work at
issue" (Matter of Duma v Baca, 83 A.D.3d 1228,
1228-1229  [internal quotation marks and citation
omitted]). Claimant testified that his supervisor, who
represented himself as an employee of Task Essential, set his
schedule, which varied week to week and included working at
two different stores. Claimant further explained that he
received training for the position from his Task Essential
supervisor and Task Essential informed him of a required
dress code. Part of claimant's job entailed meeting sales
goals, he was paid an hourly rate and he would ask permission
from a Task Essential supervisor before leaving his post to
use the restroom. Claimant explained that, after he fell, a
Task Essential supervisor informed him that he could not
leave because there was no one to cover the skin care
station. According to claimant, his Task Essential supervisor
would occasionally spot check him to observe his performance.
Deferring to the Board's credibility determinations, and
despite other evidence in the record that could support a
different result, we find that substantial evidence supports
the determination that claimant was an employee of Task
Essential (see Matter of Jara v SMJ Envtl., Inc., 55
A.D.3d 1157, 1158 ; Matter of LaCelle v New York
Conference of Seventh-Day Adventists, 235 A.D.2d 694,
695 , lv dismissed 89 N.Y.2d 1085');">89 N.Y.2d 1085 ,
lv denied 96 N.Y.2d 713');">96 N.Y.2d 713 ). 
given the evidence in the record of Task Essential's
ongoing control over claimant, substantial evidence supports
the Board's determination that claimant was not a special
employee of Bloomingdale's or its owner, Macy's Inc.
(see Matter of Oppedisano v Randall Elec., 285
A.D.2d 759, 760 ). Moreover, in the absence of evidence
in the record that Macy's or Bloomingdale's had any
contract for work that they subcontracted to Task Essential,
the Board properly rejected Task Essential's argument
that Workers' Compensation Law § 56 rendered
Macy's or Bloomingdale's liable (see Matter of
Dewhurst v Simon, 295 NY 352, 353 ; Matter of
Griffin v New York State Dept. of Commerce, 141 A.D.2d
961, 962 ; Matter of Rothman v Holland, 42
A.D.2d 1010, 1011 ).
we will not disturb the Board's determination that late
notice should be excused, because Task Essential had actual
notice of the accident and was not prejudiced, if that
determination is supported by substantial evidence
(see Workers' Compensation Law § 18;
Matter of Lopadchak v R.W. Express LLC, 133 A.D.3d
1077, 1077 ). Claimant testified that, after he fell,
he phoned his supervisor, whom he identified as an employee
of Task Essential, and informed him of the accident. Although
the supervisor testified that claimant stated that he was
uninjured by the fall, the Board was free to credit
claimant's testimony to the contrary (see Matter of
Tangorre v Tech Home Elec., LLC, 124 A.D.3d 1183, 1184
; Regan v City of Hornell Police Dep't,
124 A.D.3d 994, 996 ). Accordingly, as there is no
proof of prejudice, substantial evidence supports the
determination that claimant's late notice of injury was
excusable (see Matter of McNichols v New York City Dept.
of Corr., 140 A.D.3d 1557, 1557 ; Matter of
Thousand v Human Resources Admin., Community Dev.
Agency, 252 A.D.2d 664, 665 , lv denied
92 N.Y.2d 816');">92 N.Y.2d 816 ). Moreover, as substantial evidence
supports the conclusion that claimant was injured during a
short break in which he used the restroom, we reject Task
Essential's contention that the accident did not occur in
the course of claimant's employment (see Matter of
Pabon v New York City Tr. Auth., 24 A.D.3d 833, 833
; Matter of Harford v Widensky's, Inc.,
154 A.D.2d 821, 822-823 ). We have considered each of
Task Essential's remaining arguments and, to the extent
they are preserved, find them to also be without merit.
P.J., Clark, Mulvey and ...