New York: Board—Not the Trial Court—Must Determine if Worker Was Independent Contractor

Reiterating the important rule in New York, that where the availability of workers’ compensation benefits hinges upon questions of fact or upon mixed questions of fact and law, the parties may not choose the courts as the forum for resolution of the questions, but must instead look to the Workers’ Compensation Board for such determinations, a state appellate court recently held that a trial court’s determination that a worker was an independent contractor, and not an employee, must be reversed [Findlater v Catering by Michael Schick, Inc., 2018 N.Y. App. Div. LEXIS 7728 (2d Dept., Nov. 14, 2018).

Trial Court Should Have Held Matter in Abeyance

The appellate court added that the trial court should have held the matter in abeyance pending a final resolution of a prompt application to the Board to determine the parties’ rights under the Workers’ Compensation Law.


The plaintiff worked intermittently for the defendant for several years. In April 2014, plaintiff sustained injuries when a food rack fell from a forklift operated by the defendant’s employee and struck the plaintiff. The plaintiff thereafter commenced his action to recover damages for personal injuries. Following discovery, the defendant moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that the action was barred by the exclusivity provisions of the Workers’ Compensation Law. The plaintiff cross-moved for summary judgment determining that the defendant was negligent in the happening of the accident and that the plaintiff was an independent contractor at the time of the accident.

The trial court denied the defendant’s motion, and granted the plaintiff’s cross motion, concluding that the plaintiff was an independent contractor at the time of the accident.

Issue of Fact Existed as to Employment Status

Reversing the trial court, the appellate court noted that the defendant had introduced an affidavit of one of its employees, wherein the employee stated that he trained the plaintiff, supervised the plaintiff closely, set the plaintiff’s hours on the days the plaintiff worked, and directed the plaintiff’s work. The affidavit raised a question of fact regarding whether the plaintiff was the defendant’s employee on the date of the accident. The trial court should not have denied the defendant’s motion for summary judgment, but should have allowed the employment issue to be determined by the Board.

This entry was posted in Case comment and tagged , , , , . Bookmark the permalink.