IN RE: the Claim of Omar MOLINA (2008)

Appeal from a decision of the Workers' Compensation Board, filed February 15, 2006, which denied Rocky Lopano's request for reconsideration or full Board review.

Claimant was injured in 2002 and filed a claim for workers' compensation benefits listing Fresh Direct c/o FD Property Holding, Inc. (hereinafter FD Property) as his employer, however, FD Property denied that an employer-employee relationship existed with claimant.  Following a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ), in a decision filed July 23, 2004, determined, among other things, that Rocky Lopano, doing business as Rocky Lopano Construction (hereinafter the employer), a subcontractor working for FD Property, was claimant's employer and levied assessments against the employer for failure to have workers' compensation coverage at the time of the accident.

The employer applied for review of the WCLJ's decision before the Workers' Compensation Board on July 29, 2004, but was informed by the Board that the application failed to comply with requirements set forth in 12 NYCRR 300.13 and was given 30 days to fully comply.  In November 2004, the employer again applied for Board review without complying with the regulation.  In a decision filed March 2, 2005, the Board denied review of the WCLJ's decision based on the employer's failure to comply with 12 NYCRR 300.13(a) and (e)(1) (ii).  In November 2005, the employer once again requested full Board review or, alternatively, a rehearing of the WCLJ's decision.  In a decision filed February 15, 2006, the Board denied the application for review as untimely and refused to grant a rehearing.  The employer now appeals.

Initially, we note that inasmuch as the employer appeals from the denial of his request for a rehearing or full Board review of the claim, the merits of the Board's underlying determination of an employer-employee relationship in this matter are not properly before us (see Matter of Doherty v. Colgate Univ., 3 A.D.3d 810, 810, 770 N.Y.S.2d 899 [2004];  Matter of Palma v. New York City Dept. of Corrections, 301 A.D.2d 774, 774, 753 N.Y.S.2d 242 [2003] ).  Our review is therefore limited to whether, by denying the request for a rehearing or full Board review, the Board abused its discretion or acted in an arbitrary and capricious manner (see Matter of Depew v. Lancet Arch, 2 A.D.3d 1013, 1013, 768 N.Y.S.2d 408 [2003];  Matter of Macareno v. Son Yeng Produce, 305 A.D.2d 928, 929, 758 N.Y.S.2d 871 [2003] ).

The employer's request for a rehearing was premised on an affidavit from FD Property's chief executive officer at the time of claimant's injury.  The employer, however, has failed to demonstrate that this evidence was unavailable at the time of the hearing.  Under these circumstances, we cannot say that it was an abuse of discretion or arbitrary and capricious for the Board to have denied the employer's application (see 12 NYCRR 300.14[a][1];  Matter of Depew v. Lancet Arch, 2 A.D.3d at 1014, 768 N.Y.S.2d 408;  Matter of Palma v. New York City Dept. of Corrections, 301 A.D.2d at 775, 753 N.Y.S.2d 242;  Matter of Shell v. Poughkeepsie Hous. Auth., 276 A.D.2d 843, 845, 714 N.Y.S.2d 547 [2000], appeal dismissed 96 N.Y.2d 731, 722 N.Y.S.2d 797, 745 N.E.2d 1019 [2001] ).

ORDERED that the decision is affirmed, without costs.

CARDONA, P.J.

PETERS, SPAIN, ROSE and KANE, JJ., concur.