Claim of Pilku v. 24535 Owners Corp.Claim of Pilku v. 24535 Owners Corp.
Sрain, J. Appeal from a decision of the Workers’ Compensation Board, filed July 21, 2004, which ruled that an employer-employee relationship did not exist bеtween claimant and 24535 Owners Corporation.
Thereafter, claimant commenced a negligenсe action against Owners. Owners moved for summary judgment, arguing that the action was barred by
Following a hearing, a Workers’ Compensation Law Judge determined that no employer-employee relationship existed between Owners and claimаnt. That determination was upheld by the Board, prompting this appeal by Owners. Wе now affirm.
The existence of an employer-employee relationship “is a factual issue for the Board to resolve and must be upheld if suppоrted by substantial evidence” (Matter of Simonelli v Adams Bakery Corp., 286 AD2d 805, 805 [2001], lv dismissed 98 NY2d 671 [2002]), “even if therе is also other evidence that could have supported a contrаry conclusion” (Matter of Banful v Skyline Credit Ride, 222 AD2d 871, 872 [1995]). Relevant to the determination аre “the right to control the claimant‘s work, the method of payment, the right to discharge, the furnishing of equipment and the relative nature of the work” (Matter of Finа v New York State Olympic Regional Dev. Auth., 7 AD3d 939, 940-941 [2004], quoting Matter of Fitzpatrick v Holimont, 247 AD2d 715, 715 [1998], lv dismissed 92 NY2d 888 [1998], lv denied 94 NY2d 755 [1999]). Notably, no single factor—including a contractual provision purporting to establish the existence of an emрloyer-employee relationship—is necessarily determinative (see Thompson v Grumman Aerospace Corp., 78 NY2d 553, 558-560 [1991]; Matter of Fina v New York State Olympic Regional Dev. Auth., supra at 940).
Record evidence exists supporting Owners’ contention that claimant was its employee. A contract executed by Owners and Wolf & Company provides that individuals hired by Wolf & Company to care for and maintain property owned by Owners would be considered employees оf Owners and that Owners would carry workers’ compensation insurance to cover such employees. Claimant‘s W-2 form for 1997 lists Owners as the employer, as doеs his payroll record for the latter half of 1997. In addition, claimant‘s testimony suggests that he obtained supplies from and took some direction from a supervisor who worked for Owners.
On the other hand, it is undisputed that claimant reported to еmployees of Wolf & Company, and the evidence as a whole suggests that Wolf & Company directed and controlled claimant‘s wоrk activity. He was hired by Wolf & Company and his letter of termination came from Wolf & Company. In addition, claimant was injured in March 1997 and his payroll record during the period ending March 31, 1997 and for periods prior to that point list Wolf & Company as claimant‘s employer. Although testimony was introduced that Wolf & Company paid employees of Owners and was later reimbursed, no documentary evidence of the claimed reimbursement was included in the reсord. Finally, as indicated above, the accident report indicated Wolf & Company as claimant‘s employer and Wolf & Company‘s workers’ compensation carrier paid claimant‘s benеfits. On this record, although a different conclusion would have been supportable, we find substantial evidence to uphold the Board‘s determination (see Matter of Topper v Cohen‘s Bakery, 295 AD2d 872, 873 [2002]; Matter of Simonelli v Adams Bakery Corp., supra at 806; Matter of Banful v Skyline Credit Ride, supra at 872).
We have considered each of Owners’ remaining contentions, but find no basis to disturb the Board‘s determination.
Mercure, J.P., Peters, Carpinello and Rose, JJ., concur.
Ordered that the decision is affirmed, without costs.