State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 19, 2017 523283
________________________________
In the Matter of the Claim of
MARIE BARNETT,
Respondent,
v MEMORANDUM AND ORDER
BRENDA T. CALLAWAY,
Appellant,
et al.,
Respondent.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: December 13, 2016
Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.
__________
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White
Plains (Jeremy M. Buchalski of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for Workers' Compensation Board,
respondent.
__________
Aarons, J.
Appeal from a decision of the Workers' Compensation Appeal
Board, filed August 14, 2015, which ruled, among other things,
that New York has jurisdiction over the claim for workers'
compensation benefits.
In May 2011, claimant, a chef manager, sustained work-
related injuries to her right arm and shoulder when she slipped
-2- 523283
and fell while working for the uninsured employer. Although the
incident resulting in claimant's injuries occurred in Florida,
claimant, a resident of New York, filed a claim for workers'
compensation benefits in New York. Thereafter, prima facie
medical evidence was found for a right shoulder injury.
Following a hearing, a Workers' Compensation Law Judge found,
insofar as relevant here, that there were sufficient contacts
between claimant's employment and New York to establish subject
matter jurisdiction over the claim. The Uninsured Employers'
Fund (hereinafter UEF) and the uninsured employer sought
administrative review, and the Workers' Compensation Board
declined to consider the appeals, finding that the application
for review by the UEF was untimely and that the employer failed
to serve a copy of its application for review on the UEF.
Thereafter, in an amended decision, the Board denied the
applications by the employer and the UEF for reconsideration
and/or full Board review; however, the Board exercised its
discretion to address the merits of the employer's prior
application for review and, in so doing, affirmed the decision of
the Workers' Compensation Law Judge in toto.1 The employer now
appeals.
"For the Board to have jurisdiction over a claim arising
from a work-related injury that occurred outside New York, it
must determine whether there were sufficient and significant
contacts between the state and the employer to support a
reasonable conclusion that the employment was to some extent
sited in this state" (Matter of Deraway v Bulk Stor., Inc., 51
AD3d 1313, 1314 [2008] [citations omitted]; see Matter of Colley
v Endicott Johnson Corp., 60 AD3d 1213, 1214 [2009]; Matter of
Bugaj v Great Am. Transp., Inc., 20 AD3d 612, 613 [2005]; Matter
of Sanchez v Clestra Cleanroom, Inc., 11 AD3d 781, 782 [2004]).
To make this determination, the Board may consider various
factors, including where the employee resides, where the employee
1
During the pendency of the applications for
reconsideration and/or full Board review, a Workers' Compensation
Law Judge found that claimant had a permanent partial disability,
with a 50% schedule loss of use of her right hand and a 30%
schedule loss of use of her right arm and awarded her benefits.
-3- 523283
was hired, the location of the employee's employment and the
employer's offices, whether the employee was expected to return
to New York after completing out-of-state work for the employer
and the extent to which the employer conducted business in New
York (see Matter of Colley v Endicott Johnson Corp., 60 AD3d at
1214; Matter of Deraway v Bulk Stor., Inc., 51 AD3d at 1314; see
generally Matter of Nashko v Standard Water Proofing Co., 4 NY2d
199, 201-203 [1958]). Upon due consideration of these relevant
factors, if "it appears that the claimant's employment had
sufficient significant contacts with New York such that it may
reasonably be concluded that the employment was located here,
then subject matter jurisdiction exists" (Matter of Palagurchi v
Mengs Serv., 302 AD2d 648, 649 [2003] [internal quotation marks
and citation omitted]).
While there is no dispute that claimant sustained her
injuries while working in Florida, the record also establishes
that claimant has maintained her primary and permanent residence
in New York since 1983. Claimant testified that, in 2006, she
was interviewed and hired at her employer's residence located in
New York and that her job duties included maintaining, and
cooking for, that residence. Although claimant traveled with,
and worked for, her employer in Florida for approximately eight
months out of the year, claimant lived at her employer's
residence in New York for the balance of the year for five days a
week while performing her job responsibilities. In addition,
claimant testified that, throughout her employment, she
considered New York her home. Accordingly, under the
circumstances presented here, we conclude that, notwithstanding
evidence in the record that could support a contrary result,
substantial evidence supports the Board's determination that
there were significant contacts with New York to establish
subject matter jurisdiction over this claim (see Matter of Nashko
v Standard Water Proofing Co., 4 NY2d at 202-203; Matter of
Deraway v Bulk Stor., Inc., 51 AD3d at 1314-1315; Matter of
Sanchez v Clestra Cleanroom, Inc., 11 AD3d at 782-783; compare
Matter of Colley v Endicott Johnson Corp., 60 AD3d at 1214-1215;
Matter of Palagurchi v Mengs Serv., 302 AD2d at 649).
McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.
-4- 523283
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court