Opinion
2012-01-5
In the Matter of the Claim of Edward BLOTKO, Appellant, v. SOLOMON OLIVER MECHANICAL CONTRACTING et al., Respondents.Workers' Compensation Board, Respondent.
Leonard B. Feld, Jericho, for appellant. Weiss, Wexler & Wornow, P.C., New York City (Michael J. Reynolds of counsel), for Solomon Oliver Mechanical Contracting and another, respondents.
Leonard B. Feld, Jericho, for appellant. Weiss, Wexler & Wornow, P.C., New York City (Michael J. Reynolds of counsel), for Solomon Oliver Mechanical Contracting and another, respondents.
Before: MERCURE, ACTING P.J., PETERS, ROSE, LAHTINEN and GARRY, JJ.
MERCURE, ACTING P.J.
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.
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 A.D.3d 1043, 1044, 916 N.Y.S.2d 306 [2011] [internal quotation marks and citation omitted]; see Matter of Duma v. Baca, 83 A.D.3d 1228, 1228, 921 N.Y.S.2d 389 [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 A.D.3d at 1044, 916 N.Y.S.2d 306). Thus, despite proof in the record that would support a contrary conclusion ( see Matter of Lai Pock Lew v. Younger, 69 A.D.3d 1161, 1162, 893 N.Y.S.2d 367 [2010] ), we find no basis to disturb the Board's decision that claimant was not SOMC's employee.
ORDERED that the decision is affirmed, without costs.