Opinion
No. 510919.
April 14, 2011.
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.
Gottesman, Wolgel, Malamy, Flynn Weinberg, P.C., New York City (Steven Weinberg of counsel), for appellant.
George Tabor, New York City, for Lawrence Dow, respondent.
Stewart, Greenblatt Manning, Syosset (David J. Goldsmith of counsel), for Travelers Insurance Company, respondent.
Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), for Workers' Compensation Board, respondent.
Before: Spain, J.P., Stein, McCarthy and Garry, JJ.
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; Matter of Rivers v Blue Ridge Farms, Inc., 36 AD3d 1132, 1133). 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). As the nonfmal 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; Matter of Wilson v Roselli Moving Stor. Corp., 37 AD3d 959), this appeal must be dismissed.
Ordered that the appeal is dismissed, without costs.