32 A.D.2d 690 | N.Y. App. Div. | 1969
Appeal from a decision of the Workmen’s Compensation Board holding claimant to be an employee of the City of New York and as such to be entitled to workmen’s compensation by virtue of the city’s election in February, 1962 to cover all of its employees under its Career and Salary Plan. On November 17, 1965 claimant, a business machine operator for the Bureau of Supplies of the Board of Education of the City of New York, injured her left wrist and shoulder as the result of a fall. As an employee of the Board of Education, claimant was a member of the Career and Salary Plan which the city adopted in 1954 and the Board of Education elected to come within in 1955. As originally constituted, the plan was designed to establish pay parity among the various branches and departments of the city. However, while the plan covered all city positions, it did not apply to the employees of independent agencies, boards, public authorities and public corporations unless they elected to come within its purview. As noted, the Board of Education elected to have its employees come within the plan in 1955, but significantly just one year later in 1956 when leave regulations were added to the plan, the Board of Education did not accede to these and promulgated its own regulations. Similarly, in 1962 when the city passed a resolution stating that “ all employment to which the Career and Salary Plan is applicable * * * shall be brought within the coverage of the Workmen’s Compensation Law of the State of New York ”, the Board of Education did not consent to this and instead, pursuant to subdivision 16 of section 2554 of the Education Law as amended in April, 1962, established its own system for compensating its employees injured in the performance of their duties. These facts are not disputed and the sole question is whether the board properly interpreted the legal consequences thereof in finding that claimant was covered by workmen’s compensation in that she was an employee of the city for workmen’s compensation purposes. Before taking up this issue we would note that we find no merit in respondent’s position that the Board of Education is not “ a party in interest ” in this proceeding. It would seem rather that the Board of Education is vitally concerned in the outcome since it most likely would eventually bear the burden of paying the award were the board’s decision final. The Board of Education clearly has an interest in protecting its funds from application by the city to expenses not authorized by it in its capacity as a State agency (see Matter of Divisich v. Marshall, 281 N. Y. 170, 173). And while there is unquestionable confusion in the designation of the parties below the appeal is allowed particularly in view of the interest of the Board of Education in the outcome and since the corporation counsel is the attorney for both the city and the Board of Education. Respondents urge that claimant is an employee of the city for workmen’s compensation purposes relying on a provision of the New York City Administrative Code which defines a city employee as “Any person whose salary in whole or in part is paid out of the city treasury ” (Administrative Code of City of New York, § 1150-1.0, subd. 1) and the Court of Appeals decision in Matter of Daniman v. Board of Educ. of City of N. Y. (306 N. Y. 532). Clearly I)animan holds that since their salary is paid out of the city treasury, Board of Education employees are city employees for some purposes but the Court of Appeals’ later decision in Lanza v. Wagner (11 N Y 2d 317, 326-327) also makes it abundantly clear that board employees are not city employees for all purposes, but merely for the purpose of certain