Commissioners of State Insurance Fund v. R.B. Transportation Corp.

Order, Supreme Court, New York County (Charles Ramos, J.), entered August 4, 1997, which, in an action to recover unpaid workers’ compensation policy premiums, insofar as appealed from, denied plaintiffs motion for summary judgment, unanimously affirmed, without costs. Issues of fact exist as to whether defendant, which describes itself and is recognized by plaintiff for present purposes to be a “service business that leases employees to a [taxi] dispatch service [operated at the same location as defendant and owned by the same person, which employees] perform general office work and operate the telephones”, is an employer of the cab drivers dispatched by the dispatch service or a contractor of taxi dispatch services, within the meaning of Workers’ Compensation Law § 2 (3) or sections 56 and 3 (1) (Groups 7, 12) (see, Matter of Westchester Express v State Ins. Fund, 153 AD2d 803). We reject plaintiffs argument that a Workers’ Compensation Board determination awarding benefits to a cab driver under defendant’s policy is determinative of the issues herein, there being no indication that defendant appeared, was given notice or had an opportunity to be heard in connection with that determination. Concur — Nardelli, J. P., Wallach, Tom and Andrias, JJ.