In the Matter of The Claim of Ilias Siliverdis v. Sea Breeze Serv. Corp..

• Decision Date: 24 March 2011
• Citation: 2011 N.Y. Slip Op. 02090,82 A.D.3d 1459,919 N.Y.S.2d 231
• Parties: In the Matter of the Claim of Ilias SILIVERDIS, Appellant,v.SEA BREEZE SERVICES CORPORATION et al., Respondents.Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1459
919 N.Y.S.2d 231
2011 N.Y. Slip Op. 02090

In the Matter of the Claim of Ilias SILIVERDIS, Appellant,
v.
SEA BREEZE SERVICES CORPORATION et al., Respondents.Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

March 24, 2011.

[919 N.Y.S.2d 232]

Pontisakos & Rossi, P.C., Roslyn (Elizabeth Mark Meyerson of counsel), for appellant.Cherry, Edson & Kelly, L.L.P., Tarrytown (Ralph E. Magnetti of counsel), for Sea Breeze Services Corporation and another, respondents.Before: LAHTINEN, J.P., KAVANAGH, McCARTHY and GARRY, JJ.McCARTHY, J.

[82 A.D.3d 1459] Appeals (1) from a decision of the Workers' Compensation Board, filed June 30, 2009, which ruled that claimant's injury did not arise out of and in the course of his employment, and (2) from a decision of said Board, filed June 28, 2010, which denied claimant's application for full Board review.

Claimant worked as a carpenter for the employer and alleged that, on June 27, 2007, while working on the roof of a school construction project, he was struck by a forklift and sustained injuries to his neck, back and left knee. As a result of the alleged accident, claimant applied for workers' compensation benefits and the employer and its workers' compensation carrier controverted the claim. Following several hearings, a Workers' Compensation Law Judge ruled that claimant was injured in the course of his employment and established the claim for a work-related back injury. Upon review, the Workers' Compensation Board reversed, finding that claimant was not present at the work site on the day of the alleged accident and denied the claim for benefits. The Board subsequently denied claimant's request for full Board review, and these appeals ensued.

[919 N.Y.S.2d 233]

[82 A.D.3d 1460] We affirm. Whether an injury has arisen out of and in the course of employment is a factual issue for the Board to resolve and its decision will not be disturbed when supported by substantial evidence ( see Matter of McFarland v. Lindy's Taxi, Inc., 49 A.D.3d 1111, 1112, 853 N.Y.S.2d 743 [2008]; Matter of Mattaldi v. Beth Israel Med. Ctr., 29 A.D.3d 1192, 1193, 814 N.Y.S.2d 808 [2006]; Matter of Smith v. Paul Smith's Coll., 186 A.D.2d 320, 320, 587 N.Y.S.2d 802 [1992] ). Similarly, the Board is the final arbiter in the resolution of witness credibility and this Court will defer to the Board's assessment of such ( see Matter of Guz v. Jewelers Machinist, Inc., 71 A.D.3d 1272,...