(dissenting). I cannot agree that collateral estoppel
is inapplicable in the circumstances of this case.
The Court of Appeals recently "made clear that the doctrines of res judicata and collateral estoppel are applicable to give conclusive effect to the quasi-judicial determinations of *113administrative agencies * * * when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law” (Ryan v New York Tel. Co., 62 NY2d 494, 499 [citations omitted]). In Matter of Schimmel (Roberts) (101 AD2d 681), the Unemployment Insurance Appeal Board (Board) ruled that a claimant was ineligible for benefits because he lost his employment through misconduct in fighting with a co-worker. In a prior administrative proceeding, however, the co-worker had been granted benefits upon a finding that there had been no fight. We affirmed the Board’s decision since the issue of misconduct was different as to each employee, but we made the following relevant statements: "The Attorney-General contends that the Board’s decision must be affirmed since there is substantial evidence in the record to support it. Implicit in this argument is the suggestion that where there is conflicting evidence on a factual issue, the Board has not only the power to resolve the factual issue by choosing which version of the conflicting evidence to believe, but it can also resolve the same issue differently in different proceedings by accepting both versions of the conflicting evidence. Thus, under this theory, our review would be limited to searching the record for evidence to support the finding, without regard to whether the factual issues previously had been determined in separate but related proceedings. We reject this argument, for the Board is bound by the doctrine of issue preclusion, which bars the relitigation of discrete factual issues (Matter of Ranni [Ross], 58 NY2d 715, 717). Thus, this court must inquire into the effect of the prior decision” (supra, p 681).
The same rationale should apply where, as here, the proceedings were held before unrelated administrative bodies. "What is controlling is the identity of the issue which has necessarily been decided in the prior action or proceeding” (Ryan v New York Tel Co., supra, p 500).
In both the prior proceeding before the Board and the instant proceeding before the State Division of Human Rights (Division), the issue was whether petitioner was an employee or an independent contractor. The prior proceeding considered the issue in the context of Labor Law article 18, while the issue herein was decided under Executive Law article 15. It must be determined whether this distinction renders the issues sufficiently different to justify conflicting results. I think not.
*114It is noteworthy that the Division made no attempt to provide any rational basis for reaching a different conclusion under the Executive Law than had been determined under the Labor Law. The term "employer” is not defined in Executive Law article 15, but it is intended to be interpreted in its accepted and dictionary meaning (Matter of Board of Higher Educ. v Carter, 14 NY2d 138, 147; State Div. of Human Rights v Board of Coop. Educ. Servs., 98 AD2d 958, appeal dismissed 62 NY2d 645). The Labor Law, on the other hand, contains a brief definition of "employer” (Labor Law § 512) and an extensive definition of "employment” (Labor Law § 511). But, in Matter of Morton (Miller) (284 NY 167, 172), the court concluded that the "general concept, evolved by a long line of tort cases and expressed by many eminent writers on the subject”, also applicable in workers’ compensation cases, should be applied in reviewing decisions of the Board on the employee/ independent contractor issue. The Court of Appeals has recently cited the Morton case favorably where a Board’s decision under the Labor Law was involved (Matter of Villa Maria Inst. of Music [Ross], 54 NY2d 691, 692) and where an issue of employment had arisen in another context (Nassau Ch. of Civ. Serv. Employees Assn. v County of Nassau, 53 NY2d 559, 563-564). It is also significant that in reviewing a Board decision on the employee/independent contractor issue, the Court of Appeals cited to Matter of Liberman v Gallman (41 NY2d 774), a case involving a similar issue under the Tax Law (Matter of Villa Maria Inst. of Music [Ross] supra). Accordingly, it is my view that the issue of whether a person is an employee or an independent contractor must be decided under the same general principles, whether it arises under Labor Law article 18 or Executive Law article 15. Thus, the issues are identical for collateral estoppel purposes.
Collateral estoppel, of course, cannot be applied against a party who has not had a full and fair opportunity in the prior proceeding to contest the issue now said to be controlling (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485), but Calgon cannot make such a claim.
Having concluded that Calgon is precluded from relitigating the question of whether petitioner is an employee, I would annul the Division’s determination.
Kane, J., concurs with Mahoney, P. J.; Harvey and Main, *115JJ., concur in a separate opinion by Harvey, J.; Casey, J., dissents and votes to annul in an opinion.
Determination confirmed, and petition dismissed, without costs.