Kreisler v. Dennis Bridgehampton Bldg. Corp.

• Decision Date: 27 October 1971
• Citation: 37 A.D.2d 891,325 N.Y.S.2d 301
• Parties: In the Matter of the Claim of Seth E. KREISLER, Respondent, v. DENNIS BRIDGEHAMPTON CONSTRUCTION CORP., et al., Appellants, and Putpark Construction Co., Inc., et al., Respondents. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 301

325 N.Y.S.2d 301

37 A.D.2d 891

In the Matter of the Claim of Seth E. KREISLER, Respondent, v. DENNIS BRIDGEHAMPTON CONSTRUCTION CORP., et al., Appellants, and Putpark Construction Co., Inc., et al., Respondents.

Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

Oct. 27, 1971.

William J. Clark, Mattituck, for respondent.

Milton Peckman, New York City (Louis Busell, New York City, of counsel), for appellants.

Martin Bergman, New York City, for respondent Uninsured Employers' Fund.

Louis J. Lefkowitz, Atty. Gen. (Daniel Polansky, Asst. Atty. Gen. and Henriette B. Frieder, New York City, Principal Atty., of counsel), for respondent Workmen's Compensation board.

Before HERLIHY, P.J., and REYNOLDS, STALEY, GREENBLOTT and COOKE, JJ.

MEMORANDUM DECISION.

Appeal from a decision of the Workmen's Compensation Board, filed July 29, 1970, which determined that Dennis Bridgehampton Building Corp. was the special employer of claimant and Putpark Construction Co., Inc. his general employer.

Various factors such as the right to control the methods of payment, the furnishing of equipment, the right to fire and the so-called relative nature of the work test are relevant in determining whether an employment exists, it being possible often to establish the relationship on the basis of one of these elements alone (Matter of Bianculli v. Times Sq. Stores, 34 A.D.2d 696, 697, 309 N.Y.S.2d 542, 544). The board's factual determination should be upheld since the special employment it found is supported by substantial evidence, particularly as to the supervision of construction and of the finishing of houses claimant was engaged in as opposed to his usual work of carpenter supervisor (cf. Matter of Goodman v. Stone & Webster Engineering Corp., 11 A.D.2d 558, 559, 199 N.Y.S.2d 770, 771), the absence of payment by his general employer for the day of the accident and the method of payment for work previously done by claimant for Dennis Bridgehampton.

Decision affirmed, with one bill of costs to respondents filing briefs.