Claim of McCarthy v. 2009 LaFontaine Avenue Corp.

This is an appeal by employer from award in favor of the claimant for death benefits. The appeal is from a decision and award of the referee who found that claimant was killed while engaged in repairing a leak in a boiler contained in an apartment house owned by appellant and that prior to and at the time of the accident decedent “ was a steadily employed W. P. A. worker and lived in the apartment house where the explosion occurred.” Decedent was a steamfitter and prior to the accident had never performed any work of any kind for appellant. The undisputed evidence convinces us that decedent was an independent contractor who had agreed to do a specific job for a lump sum. He was in no sense an employee of appellant, and the decision and award of the referee should be reversed and claim dismissed. (Matter of Beach v. Velzy, 238 N. Y. 100.) Award reversed and claim dismissed, with costs against the State Industrial Board. Hill, P. J., Bliss, Schenck and Foster, JJ., concur; Heffernan, J., dissents and votes to affirm the award.