                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 13, 2014                   516780
________________________________

In the Matter of the Claim of
   DAVID M. HASBROUCK,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
CHRISTOPHER M. HARLOFF,
                    Appellant.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 16, 2014

Before:   Lahtinen, J.P., Garry, Egan Jr., Lynch and Devine, JJ.

                             __________


      Coughlin & Gerhart, LLP, Binghamton (Oliver N. Blaise III
of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City (Iris
A. Steel of counsel), for Workers' Compensation Board,
respondent.

                             __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board,
filed July 25, 2012, which, upon reconsideration, ruled, among
other things, that claimant was an employee of Christopher M.
Harloff.

      In November 2008, claimant was injured while     splitting
firewood on the property of Christopher M. Harloff     and, in
October 2009, he applied for workers' compensation     benefits. A
Workers' Compensation Law Judge, in two decisions,     found that an
                              -2-                516780

employer-employee relationship existed between claimant and
Harloff, established the claim, found Harloff in violation of
Workers' Compensation Law § 50 and authorized medical care. Upon
review, a panel of the Workers' Compensation Board reversed,
finding, among other things, that although an employer-employee
relationship existed, the claim was barred due to claimant's
failure to provide timely notice to Harloff pursuant to Workers'
Compensation Law § 18. Claimant appealed and, before the appeal
could be perfected, the full Board rescinded the decision of the
Board panel and referred the case back to the Board panel for
further consideration. Upon reconsideration, the Board panel
found that the statutory notice requirements had been met and
affirmed the Workers' Compensation Law Judge's decisions.
Harloff now appeals.

      We affirm. "Whether an employer-employee relationship
existed presents a factual issue for the Board, and its
determination thereof will not be disturbed if supported by
substantial evidence in the record" (Matter of Duma v Baca, 83
AD3d 1228, 1228 [2011] [citations omitted]; accord Matter of
Pelaez v Silverstone, 93 AD3d 1042, 1042 [2012], lv dismissed and
denied 19 NY3d 954 [2012]). Here, the Board credited the
testimony of claimant and his witness that Harloff hired claimant
in 2007 to work at Harloff's property maintenance business, and
that claimant was working in that capacity when he was injured.
While the testimony of Harloff and his witnesses sharply
conflicted with that of claimant and his witness, this created a
credibility issue for the Board's resolution (see Matter of
Martineau v Ashline, 114 AD3d 1009, 1010 [2014], lv dismissed and
denied 23 NY3d 943 [2014]; Matter of Brzezinski v Gambino, 100
AD3d 1192, 1192-1193 [2012]). Accordingly, notwithstanding the
evidence in the record to the contrary, substantial evidence
supports the Board's finding that claimant was Harloff's employee
(see Matter of Martineau v Ashline, 114 AD3d at 1010; Matter of
Pelaez v Silverstone, 93 AD3d at 1043). Further, inasmuch as
there is proof in the record that Harloff had actual knowledge of
the injury, the Board did not abuse its discretion in excusing
claimant's failure to provide Harloff with timely notice of his
injury pursuant to Workers' Compensation Law § 18 (see Matter of
Martineau v Ashline, 114 AD3d at 1010; Matter of Conyers v Van
Rensselaer Manor, 80 AD3d 914, 916 [2011]).
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Lahtinen, J.P., Garry, Lynch and Devine, JJ., concur.



ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
