Claim of Blotko v. Solomon Oliver Mechanical Contracting

Appellate Division of the Supreme Court of New York

Claim of Blotko v. Solomon Oliver Mechanical Contracting

91 A.D.3d 990, 935 N.Y.2d 910

Appellate Division of the Supreme Court of the State of New York·Decided January 5, 2012·Published·Cited by 7 cases

Opinion

Mercure, A.P.J.

[991] 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 AD3d 1043, 1044 [2011] [internal quotation marks and citation omitted]; see Matter of Duma v Baca, 83 AD3d 1228, 1228 [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 AD3d at 1044). Thus, despite proof in the record that would support a contrary conclusion (see Matter of Lai Pock Lew v Younger, 69 AD3d 1161, 1162 [2010]), we find no basis to disturb the Board’s decision that claimant was not SOMC’s employee.

Peters, Rose, Lahtinen and Garry, JJ., concur. Ordered that the decision is affirmed, without costs.

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Mercure, A.P.J.

[991] 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 AD3d 1043, 1044 [2011] [internal quotation marks and citation omitted]; see Matter of Duma v Baca, 83 AD3d 1228, 1228 [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 AD3d at 1044). Thus, despite proof in the record that would support a contrary conclusion (see Matter of Lai Pock Lew v Younger, 69 AD3d 1161, 1162 [2010]), we find no basis to disturb the Board’s decision that claimant was not SOMC’s employee.

Peters, Rose, Lahtinen and Garry, JJ., concur. Ordered that the decision is affirmed, without costs.

Claim of Blotko v. Solomon Oliver Mechanical Contracting, 91 A.D.3d 990, 935 N.Y.2d 910 (N.Y. Ct. App. 2012).

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