Calendar Date: November 13, 2017
& Nowick LLP, White Plains (David R. Taxin of counsel),
T. Schneiderman, Attorney General, New York City (Marjorie S.
Leff of counsel), for Workers' Compensation Board,
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Pritzker,
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
September 20, 2016, which ruled, among other things, that
claimant was an employee of Atelier Consulting LLC.
a construction worker, filed a claim for workers'
compensation benefits after he slipped and fractured his
right foot at a construction site, listing George
Villar/Atelier Consulting LLC as his employer and Rick
Mullady as his supervisor. An investigation by the
Workers' Compensation Board's Bureau of Compliance
determined that Atelier, having reported that it had no
employees, was listed as exempt from coverage and, therefore,
had no workers' compensation coverage in place at the
time of the accident. In addition to finding jurisdiction
over Atelier and Villar, a subsequent investigation into
which contractors were at the construction site, as well as
an attempt to locate Mullady, resulted in jurisdiction and
notice being sent to Recony Construction LLC - although
Recony never appeared at any subsequent hearings. Following a
hearing at which only claimant and a representative of Omega
Construction Group, Inc., the general contractor, testified,
the Workers' Compensation Law Judge determined that an
employer-employee relationship existed between Atelier and
claimant at the time of the accident, and that Omega was the
general contractor and, therefore, responsible for the
payment of workers' compensation awards, and imposed
against Atelier a penalty of $36, 000 for failing to secure
workers' compensation insurance during the period that
claimant was employed. The Workers' Compensation Board
affirmed that decision. Atelier appeals.
affirm. "Whether an employer-employee relationship
existed presents a factual issue for the Board, and its
determination thereof will not be disturbed if supported by
substantial evidence in the record" (Matter of
Pelaez v Silverstone, 93 A.D.3d 1042, 1042 
[internal quotation marks and citations omitted], lv
dismissed and denied 19 N.Y.3d 954');">19 N.Y.3d 954 ). "In
making this determination, relevant factors include the right
to control the work, the method of payment, the right to
discharge and the relative nature of the work"
(Matter of Mendoza v Dolgetta, 81 A.D.3d 1043, 1044
 [internal quotation marks and citation omitted]).
we find no error in the Board's refusal to consider
Villar's affidavit denying any employment relationship.
Villar submitted the affidavit and refused to appear at the
hearing, either in person or by telephone, alleging that
claimant had threatened him. Even if Villar could
substantiate such a claim, he failed to avail himself of
appropriate security accommodations in order for his
testimony to be secured, effectively and impermissibly
abrogating the parties' rights to cross-examine him
. Under such circumstances, we find no
abuse of the Board's discretion in refusing to consider
the affidavit (see 12 NYCRR 300.10 [b]; Matter
of Curtis v Xerox, 66 A.D.3d 1106, 1108 ;
Matter of Olistin v Wellington, 3 A.D.3d 618, 619
to the merits, claimant testified that he had been hired by
Mullady and worked at the construction site for about a year
before the accident. Claimant explained that he identified
Villar as his employer on his claim form because Mullady had
informed him during his employment that Villar was the boss.
Claimant testified that he witnessed Villar give cash to
Mullady in order to pay claimant and others at the job site.
Claimant also testified that if he had questions about the
work assigned by Mullady or his supervisor, he would ask
either of them or Villar, who was occasionally at the work
site. According to claimant, Villar told him after the
accident that he would pay the medical bills. Claimant was
familiar with Villar as he had worked directly for him at
various other work sites. With regard to testimony from the
Omega representative, he testified that Omega performed
construction management services at the construction site and
obtained the construction permit for the project listing
itself as the general manager. Other than indicating that
Omega was paid for its services by Villar, the representative
was unable to provide any further information regarding any
contractors working at the construction site. Given the
uncontroverted testimony of claimant, we find that the
Board's decision that claimant was employed by Atelier is
supported by substantial evidence (see Matter of Olistin
v Wellington, 3 A.D.3d at 619).
McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur.
that the decision is affirmed, without costs.