        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

105
CA 15-01122
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND SCUDDER, JJ.


JOSEPH KING, III,
PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MALONE HOME BUILDERS, INC.,
DEFENDANT-RESPONDENT-APPELLANT.


WELCH, DONLON & CZARPLES PLLC, CORNING (MICHAEL A. DONLON OF COUNSEL),
FOR PLAINTIFF-APPELLANT-RESPONDENT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (JAMES W. CUNNINGHAM
OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Steuben County (Peter C. Bradstreet, A.J.), entered February 25, 2015.
The order, among other things, conditionally granted that part of
plaintiff’s motion for partial summary judgment with respect to
liability under Labor Law § 240 (1).

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting plaintiff’s motion in its
entirety and dismissing defendant’s 12th affirmative defense and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law action seeking
damages for injuries he sustained when he fell through an unguarded
stairwell opening while performing framing work as part of the
construction of a single family residence. Plaintiff moved for
partial summary judgment on liability under Labor Law § 240 (1) and
dismissal of defendant’s 12th affirmative defense, in which defendant
asserted that plaintiff was its special employee and thus that
workers’ compensation benefits were plaintiff’s sole remedy.
Defendant cross-moved for summary judgment dismissing the complaint
based on, inter alia, its 12th affirmative defense. Supreme Court
conditionally granted that part of plaintiff’s motion with respect to
liability under Labor Law § 240 (1), but denied defendant’s cross
motion and the remainder of plaintiff’s motion on the ground that
there was an issue of fact whether plaintiff was the special employee
of defendant at the time of his fall. Plaintiff appeals and defendant
cross-appeals.

     On the date of plaintiff’s fall, he was employed by John A.
Hollands Construction Co. (Hollands) as a framer. Hollands and
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                                                         CA 15-01122

defendant had a business relationship whereby Hollands would, from
time to time, perform framing work for defendant at defendant’s
residential construction projects. After his fall at defendant’s
project, plaintiff filed for workers’ compensation benefits.
Plaintiff filed a Workers’ Compensation Board Form C-3 and identified
Hollands as his employer. In turn, Hollands appeared in the workers’
compensation case and raised the defense that plaintiff was the
special employee of defendant. At a preliminary hearing, the
administrative law judge (ALJ) directed that defendant be placed on
notice, and the matter was scheduled for defendant’s “appearance.”
Defendant’s insurance carrier, on defendant’s behalf, filed a “Notice
That Right to Compensation is Controverted.” Thereafter, the ALJ
conducted an evidentiary hearing on the special employee issue.
Defendant appeared by a Workers’ Compensation Board licensed
representative, and the testimony of four witnesses was taken through
direct and cross-examination. Those four witnesses are the same
witnesses who were identified and/or deposed by counsel in this
action. Following the hearing, the ALJ determined that plaintiff
remained in the employ of Hollands at all relevant times and that the
special employee doctrine was inapplicable. Notably, the ALJ’s
decision “discharged and removed” defendant from further notice.

     In support of that part of his motion seeking to dismiss
defendant’s 12th affirmative defense, plaintiff contended that
defendant was collaterally estopped from asserting that defense based
on the prior Workers’ Compensation Board determination. We agree with
plaintiff that the court erred in determining that collateral estoppel
did not apply to the Workers’ Compensation Board determination, and we
therefore modify the order by granting plaintiff’s motion in its
entirety.

     It is well settled that collateral estoppel is applicable to
quasi-judicial determinations of administrative agencies, including
the Workers’ Compensation Board (see Auqui v Seven Thirty One Ltd.
Partnership, 22 NY3d 246, 255; Ryan v New York Tel. Co., 62 NY2d 494,
499; Vitello v Amboy Bus Co., 83 AD3d 932, 933). A determination of
employment status made by the Workers’ Compensation Board can have
preclusive effect in a subsequent personal injury action (see Malmon v
East 84th Apt. Corp., 67 AD3d 566, 567). A quasi-judicial
determination of an administrative agency is entitled to collateral
estoppel effect “where the issue a party seeks to preclude in a
subsequent civil action is identical to a material issue that was
necessarily decided by the administrative tribunal and where there was
a full and fair opportunity to litigate before that tribunal” (Auqui,
22 NY3d at 255). Here, contrary to defendant’s contentions, we
conclude that there is an identity of issue that was necessarily
decided in the proceedings before the Workers’ Compensation Board, and
that issue is decisive in the present action. The issue whether
defendant was plaintiff’s special employer, albeit for the purposes of
insurance carrier liability, was the issue directly addressed and
resolved by the Workers’ Compensation Board (see Langdon v WEN Mgt.
Co., 147 AD2d 450, 452). We further conclude that defendant had a
full and fair opportunity to contest that issue (see id.). Defendant
had notice, appeared as a party, served a pleading and fully
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                                                         CA 15-01122

participated in the evidentiary hearing while represented by a duly
authorized Workers’ Compensation Board representative (see Workers’
Compensation Law § 24-a). Thus, contrary to defendant’s contention,
its involvement in the Workers’ Compensation Board proceeding was more
than passive, and the Board’s decision is final and conclusive (see
O’Connor v Midiria, 55 NY2d 538, 541; Malmon, 67 AD3d at 567; see
generally Liss v Trans Auto Sys., 68 NY2d 15, 21).

     With respect to defendant’s cross appeal from the order insofar
as it granted that part of plaintiff’s motion for partial summary
judgment on the issue of liability under Labor Law § 240 (1),
plaintiff established that he was injured while working at a building
that was under construction, that he fell through an open, unfinished
stairwell, and that he was not provided with any safety devices to
prevent or break his fall. In response, defendant failed to raise a
triable issue of fact, and we thus conclude that the court properly
granted that part of plaintiff’s motion (see Perkins v Loewentheil &
Daughters, 282 AD2d 510, 511; see generally Zimmer v Chemung County
Performing Arts, 65 NY2d 513, 524, rearg denied 65 NY2d 1054). We
reject defendant’s contention that plaintiff’s conduct was the sole
proximate cause of the accident (see Cody v State of New York, 52 AD3d
930, 931; Brandl v Ram Bldrs., Inc., 7 AD3d 655, 656).




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
