Summary
In Matter of Kurzyna v Communicar, Inc. (182 A.D.2d 924, lv denied 80 N.Y.2d 754), we indicated that administrative determinations under one statute are not binding under another statute.
Summary of this case from MATTER OF SAVINO v. UTOG 2-WAY RADIO, INCOpinion
April 9, 1992
Appeal from the Workers' Compensation Board.
Communicar, Inc. is a radio dispatched limousine service in the City of New York. Car owners purchase shares of stock in Communicar entitling them to installation of a corporate-owned dispatch radio and to a share of transportation calls. Andrew Zelenyansky owned the car which was driven by Steven Kurzyna, claimant's decedent. Kurzyna was a limousine driver who, although a part owner of another vehicle not involved in this case, leased the Zelenyansky car. Kurzyna was shot to death while picking up the limousine at a repair shop pursuant to the direction of Zelenyansky. Communicar appeals from a decision and amended decision of the Workers' Compensation Board which found, inter alia, that an employer-employee relationship existed between Communicar and Kurzyna.
Communicar and Scull's Angels, Inc. were found to be one and the same entity for purposes of this proceeding, which determination is not challenged herein. Andrew Zelenyansky, owner of the vehicle leased to Steven Kurzyna, claimant's decedent, was found to be a special employer.
Communicar contends that its relationship with drivers is that of a contractor with an independent contractor. The resolution of such a factual issue is within the exclusive fact-finding function of the Board (see, Matter of Harvey v Allegany Timber Land Co., 162 A.D.2d 775; Matter of Agnello v Ippolito, 132 A.D.2d 733; Matter of Hopkins v Players' Three, 99 A.D.2d 912) and where, as here, there is substantial evidence to support its decision, it must be affirmed, even while there may also be other evidence which could have supported a contrary conclusion (see, Matter of Scott v Manzi Taxi Transp. Co., 179 A.D.2d 949; see also, Matter of Rivera [State Line Delivery Serv. — Roberts], 69 N.Y.2d 679, 682, cert denied 481 U.S. 1049). Here, Communicar regulated and controlled almost every aspect of a driver's job, which it set forth in a detailed manual of rules and regulations. Drivers are screened and trained by Communicar, their driving conduct is closely regulated, minimum standards and job performance are required and enforced with fines and expulsion, and payment of wages is made by check from Communicar, which processes fare vouchers from which it retains a commission. The fares are set by Communicar and each vehicle carries a sign bearing the name Communicar. These facts, all of which are in the record, fully support the finding that an employer-employee relationship existed (see, Matter of Wittenstein v Fugazy Cont. Corp., 59 A.D.2d 249, lv denied 43 N.Y.2d 648; see also, Matter of Ziegler v Fillmore Car Serv., 83 A.D.2d 692, lv denied 54 N.Y.2d 609).
We are not unmindful of a contrary conclusion reached in an unemployment insurance case which involved factual circumstances closely paralleling the instant case (see, Matter of Pavan [UTOG 2-Way Radio Assn. — Hartnett], 173 A.D.2d 1036, lv denied 78 N.Y.2d 857). The case of Matter of Pavan (UTOG 2-Way Radio Assn. Hartnett) (supra) is not dispositive of the appeal before this court. It is settled law that an administrative determination under one statute is not binding on another agency when the same question arises under another statute (Matter of Dickstein v State Tax Commn., 67 A.D.2d 1033, 1034; see, Matter of Scott v Manzi Taxi Transp. Co., supra; Matter of Middleton [Manzi Taxi Transp. Co. Hartnett], 166 A.D.2d 758, lv denied 77 N.Y.2d 803).
Communicar also contends that Kurzyna's death did not occur during or arise within the course of his employment. It is not disputed that shortly prior to his death Kurzyna had been directed by Zelenyansky, who was at the repair shop, to come to the shop to pick up the car for his shift. Kurzyna usually picked up the vehicle at Zelenyansky's home. The record demonstrates the presence of a strong nexus between the employment and Kurzyna's presence at the murder scene (see, Matter of Masek v St. Vincent's Med. Center, 97 A.D.2d 580; see also, Matter of Malacarne v City of Yonkers Parking Auth., 41 N.Y.2d 189; Matter of Connelly v Samaritan Hosp., 259 N.Y. 137, 139), and any support for Communicar's theory that he was pursuing private interests is purely speculative (see, Matter of Robles v Mossgood Theatre-Saunders Realty, 53 A.D.2d 972).
Mikoll, Mercure, Crew III and Casey, JJ., concur. Ordered that the decision and amended decision are affirmed, without costs.