IN RE: the Claim of Miguel Maria SANTOS (2024)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers’ Compensation Board, filed July 26, 2023, which ruled that claimant's injuries did not arise out of and in the course of his employment and denied his claim for workers’ compensation benefits.

Claimant filed a workers’ compensation claim alleging that, on June 14, 2021, he fell off his electric bicycle while working as a pizza delivery person for 77 GP, Inc. and sustained injuries to his right leg, knee and foot.  77 GP and its workers’ compensation carrier controverted the claim, asserting, among other things, that no employer-employee relationship existed at the time of the accident.  Following a hearing at which claimant and 77 GP's owner both testified, the Workers’ Compensation Law Judge credited the owner's testimony that, among other things, claimant was discharged from his employment prior to sustaining his injuries and, accordingly, disallowed the claim on the basis that no employer-employee relationship existed.  Upon administrative appeal, the Workers’ Compensation Board affirmed.  Claimant appeals.

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 Blotko v. Solomon Oliver Mech. Contr., 91 A.D.3d 990, 991, 935 N.Y.S.2d 910 [3d Dept. 2012] [internal quotation marks and citations omitted];  see Matter of Puccio v. Absolute Chimney & Home Improvement, LLC, 222 A.D.3d 1060, 1063, 200 N.Y.S.3d 541 [3d Dept. 2023], lv dismissed & denied 42 N.Y.3d 967, 218 N.Y.S.3d 827, 243 N.E.3d 1272 [2024]).  The owner testified that claimant was not employed with 77 GP when he sustained his injuries on June 14, 2021, as he was discharged on June 2, 2021 for drinking on the job.  The existence of conflicting evidence, including claimant's testimony, presented a credibility issue for the Board to resolve (see Matter of Leon v. Structure Tech N.Y., Inc., 225 A.D.3d 1071, 1072, 207 N.Y.S.3d 723 [3d Dept. 2024];  Matter of Flores v. Millennium Servs., LLC, 215 A.D.3d 1146, 1148, 188 N.Y.S.3d 235 [3d Dept. 2023]).  Deferring to the Board's credibility assessment, substantial evidence supports its determination that no employer-employee relationship existed on the date claimant was injured (see Matter of Sarmiento v. Empire Contr. of N.Y. Corp., 188 A.D.3d 1384, 1385–1386, 135 N.Y.S.3d 189 [3d Dept. 2020];  Matter of Blotko v. Solomon Oliver Mech. Contr., 91 A.D.3d at 991, 935 N.Y.S.2d 910).

ORDERED that the decision is affirmed, without costs.

Clark, J.P.

Pritzker, Reynolds Fitzgerald, Ceresia and Mackey, JJ., concur.