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Matter of Tunison v. P. C. Richards Son

Appellate Division of the Supreme Court of New York, Third Department
Jan 21, 1999
257 A.D.2d 856 (N.Y. App. Div. 1999)

Opinion

January 21, 1999.

Appeal from the Workers' Compensation Board.


Claimant's decedent was employed by Outlaw Trucking Company (hereinafter Outlaw), a truck delivery service which had contracted to deliver merchandise for P. C. Richards Son (hereinafter P. C. Richards). In October 1991, decedent was fatally injured when the motorcycle he was driving was struck by a van. Finding that decedent was a special employee of P. C. Richards and that decedent's death occurred during the course of such employment, the Workers' Compensation Board ruled that P. C. Richards was liable to claimant for workers' compensation death benefits. P. C. Richards and its workers' compensation insurance carrier appeal.

We affirm. Whether an individual may be properly characterized as a special employee is a factual determination for the Board and depends largely upon the right to control the manner and details of the employee's work ( see, Matter of Quick v. Steuben County Self-Ins. Plan, 242 A.D.2d 833, lv dismissed 91 N.Y.2d 866). Here, the record discloses that P. C. Richards controlled the scheduling and location of Outlaw's merchandise deliveries, required Outlaw drivers to work on specified days and had the authority to impose rules regarding their personal appearance. Upon completing their designated route, the drivers were required to store their delivery trucks in a warehouse owned by P. C. Richards so that its employees could load the trucks with merchandise to be delivered the following day. The drivers gained access to the warehouse using identification cards bearing the name of P. C. Richards' corporate subsidiary. In our view, this proof constitutes substantial evidence to support the conclusion that P. C. Richards exercised sufficient control over important aspects of decedent's work to give rise to a special employment relationship ( see, Matter of Kemp v. City of Hornell, 250 A.D.2d 950; Matter of Shoemaker v. Manpower, Inc., 223 A.D.2d 787, lv dismissed 88 N.Y.2d 874).

Finally, given the uncontroverted evidence that decedent was routinely returning a set of truck keys to his boss at the time of the accident, we find that substantial evidence supports the Board's conclusion that decedent's death occurred in the course of his special employment ( see generally, Matter of Gray v. Lyons Transp., 179 A.D.2d 985; Matter of Pearson v. New York City Tr. Auth., 146 A.D.2d 849).

Mikoll, J. P., Crew III, Peters and Graffeo, JJ., concur.

Ordered that the decisions are affirmed, without costs.


Summaries of

Matter of Tunison v. P. C. Richards Son

Appellate Division of the Supreme Court of New York, Third Department
Jan 21, 1999
257 A.D.2d 856 (N.Y. App. Div. 1999)
Case details for

Matter of Tunison v. P. C. Richards Son

Case Details

Full title:IN THE MATTER OF THE CLAIM OF LYNDA TUNISON, Respondent, v. P. C. RICHARDS…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 21, 1999

Citations

257 A.D.2d 856 (N.Y. App. Div. 1999)
684 N.Y.S.2d 311

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