Claim of Dow v. Silver Construction Corp.

Appellate Division of the Supreme Court of New York

Claim of Dow v. Silver Construction Corp.

83 A.D.3d 1270, 921 N.Y.S.2d 912

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 14, 2011

StatusPublished

Cited by9 cases

This text of 83 A.D.3d 1270 (Claim of Dow v. Silver Construction Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Dow v. Silver Construction Corp., 83 A.D.3d 1270, 921 N.Y.S.2d 912 (N.Y. Ct. App. 2011).

Pincite

Opinion

Egan Jr., J.

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.

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 [2009]; Matter of Rivers v Blue Ridge Farms, Inc., 36 AD3d 1132, 1133 [2007]). Given that the Board continued the case to determine the issue [1271]*1271of 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 [2005]). As the nonfinal 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 [2008]; Matter of Wilson v Roselli Moving & Stor. Corp., 37 AD3d 959 [2007]), this appeal must be dismissed.

Spain, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the appeal is dismissed, without costs.

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Egan Jr., J.

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.

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 [2009]; Matter of Rivers v Blue Ridge Farms, Inc., 36 AD3d 1132, 1133 [2007]). Given that the Board continued the case to determine the issue [1271]*1271of 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 [2005]). As the nonfinal 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 [2008]; Matter of Wilson v Roselli Moving & Stor. Corp., 37 AD3d 959 [2007]), this appeal must be dismissed.

Spain, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the appeal is dismissed, without costs.

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83 A.D.3d 1270, 921 N.Y.S.2d 912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-dow-v-silver-construction-corp-nyappdiv-2011.

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