Opinion
May 25, 1995
Appeal from the Workers' Compensation Board.
Claimant, a shareholder and participating limousine driver in UTOG 2-Way Radio, Inc., a corporation providing dispatched car service, was found by the Workers' Compensation Board to be an employee of the corporation and thus eligible for workers' compensation benefits, citing to Matter of Weingarten v XYZ Two Way Radio Serv. ( 183 A.D.2d 964, lv dismissed 80 N.Y.2d 924). The Board accorded claimant benefits for injuries sustained while he was changing a flat tire while on duty as a limousine driver.
There should be an affirmance. The issue of whether an employer-employee relationship exists is a factual one for resolution by the Board. Its determination must be upheld if supported by substantial evidence. The circumstances of control by the dispatcher over its drivers, found significant of employer control in Matter of Weingarten v XYZ Two Way Radio Serv. (supra, at 965), are substantially similar to the instant case. We find that the decision of the Board is supported by substantial evidence.
There is no merit to respondent's stare decisis argument based on our decision in Matter of Pavan (UTOG 2-Way Radio Assn. — Hartnett) ( 173 A.D.2d 1036, lv denied 78 N.Y.2d 857), a case involving the same corporation as here and another limousine driver, wherein the driver was found to be an independent contractor under the Unemployment Insurance Law. 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.
Crew III, Casey, Yesawich Jr. and Spain, JJ., concur. Ordered that the decision is affirmed, without costs.