                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 6, 2016                   522371
________________________________

In the Matter of the Claim of
   VICTOR E. GUZMAN-DIMAS,
                    Respondent,
      v

FRALEXA, LLC., et al.,
                    Respondents,            MEMORANDUM AND ORDER
      and

TRAVELERS INDEMNITY COMPANY,
                    Appellant.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 16, 2016

Before:   Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.

                             __________


      Dickie, McCamey & Chilcote, PC, White Plains (Beverly M.
Barr of counsel), for appellant.

                             __________


Aarons, J.

      Appeal from a decision of the Workers' Compensation Appeal
Board, filed March 31, 2015, which ruled that Travelers Indemnity
Company was the liable workers' compensation carrier.

      Claimant's employer, Fralexa, LLC, is a New Jersey
corporation with its sole office located in New Jersey. The
employer maintained New Jersey workers' compensation insurance
through Travelers Indemnity Company. In March 2013, claimant, a
delivery laborer, sustained work-related injuries after falling
                              -2-                522371

off the back of a delivery truck while delivering and unloading a
mattress in New York. Claimant, a resident of New York, filed a
claim for workers' compensation benefits in New York. Travelers
controverted the claim on the ground that the claim was not
covered under its policy in effect at the time because it did not
cover the employer for workers' compensation injuries occurring
outside of New Jersey. Following a hearing, a Workers'
Compensation Law Judge found, among other things, that Travelers
was the proper carrier. The Workers' Compensation Board
affirmed, finding that Travelers failed to produce evidence,
including a copy of its policy showing its exclusions, at the
hearing demonstrating that its policy excluded coverage for any
employee hired in New York to perform work for the employer.
Travelers now appeals.

      We reverse. Initially, we note that, contrary to the
Board's finding, the record indicates that the policy that
Travelers issued to the employer was before the Board. The
prehearing conference statement identified the policy issued to
the employer and noted that it was attached to that statement,
and the Workers' Compensation Law Judge was informed at the
hearing that the policy was in the Board's file. The application
for Board review also identified the policy, indicating that the
document was in the Board's file and attached to the prehearing
conference statement. Thus, the record amply demonstrates that
Travelers produced the at-issue policy (compare Matter of Cerbasi
v County Metal & Glass, Inc., 115 AD3d 1084, 1085 [2014]).

      In any event, upon review of the policy that Travelers
issued to the employer that is in the record before us, we agree
with Travelers' contention that the conditions for coverage in
New York were not met. The policy that Travelers issued to the
employer contained a "limited other states insurance
endorsement." In order for Travelers to pay benefits for a
workers' compensation claim in New York under that endorsement,
various conditions were required to be met, including, among
other things, that the claimant seeking benefits must have been
hired in New Jersey and, at the time of injury, the employee must
have been principally employed in New Jersey. Claimant
testified, however, that he was hired in New York in April 2011,
picked up each morning in New York and dropped off at the end of
                                -3-                  522371

each work day in New York. Further, claimant explained that his
job duties consisted of delivering merchandise to locations
throughout Long Island and that he never went to, or worked in,
New Jersey. Accordingly, because claimant was neither hired in
New Jersey nor worked there, the record evidence demonstrates
that not all of the conditions were met for the policy's
endorsement to apply to his workers' compensation claim in New
York (see Matter of Chmura v T&J Painting Co., Inc., 83 AD3d
1193, 1194-1195 [2011]; Matter of Chmura v T&J Painting Co.,
Inc., 64 AD3d 987, 988 [2009]).1

        Peters, P.J., McCarthy, Garry and Clark, JJ., concur.



      ORDERED that the decision is reversed, without costs, and
matter remitted to the Workers' Compensation Board for further
proceedings not inconsistent with this Court's decision.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court



    1
        We note that Workers' Compensation Law § 50 (2) provides
that an employer with employees in New York must secure workers'
compensation insurance "through a policy issued under the law of
this state." Thus, because the policy issued by Travelers did
not list New York in Item 3A, the employer was required to obtain
a New York workers' compensation insurance policy that listed New
York in Item 3A (see Matter of Estate of Velasquez v NGA Constr.
Co., Inc., 112 AD3d 1051, 1052 [2013]; Matter of Chmura v T&J
Painting Co., Inc., 83 AD3d at 1194-1195).
