We successfully defended a claim where a large cable provider (owner) hired a contractor to complete work at an out-of-state location, and various parts of the job were subcontracted to several different companies, one of which did not have New York workers’ compensation insurance coverage. The contested issues were whether the Board has subject matter jurisdiction over this claim, what company employed the claimant, and whether the claimant was a covered employee.

We argued that the claimant was not an employee/special employee of the cable provider and emphasized that an owner who contracts with an independent contractor for construction on his own property is not a contractor within the meaning of Section 56 of the Workmen's Compensation Law in New York. A special employer assumes and exercises “exclusive control” over a general employee; a determination on the issue of special employment may be made as a matter of law. However, if there are issues of fact concerning a surrender of control by a general employer and an assumption of control by a special employer, a determination on the issue of special employment will hinge upon a consideration of not only control but also factors such as the special employer's right to hire or discharge such an employee, the payment of wages and ownership of tools utilized on the job, all the while recognizing that ordinarily no one factor is determinative. There was no evidence on the record to support that an employee-employer relationship existed between our client and the claimant.

With regard to subject matter jurisdiction, we argued that New York did not have sufficient contacts with the circumstances surrounding this claim. The only contact between this claim and the state of New York was the claimant’s home address.

The court agreed with our arguments and dismissed our client from the claim.