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Judge Peters remarks for Torts, Insurance and Compensations Law Section and Trial Lawyers Section of NYSBA - May 24, 2012

Good Evening,

I am grateful to the State Bar for this fabulous event celebrating my appointment to the position of Presiding Justice of the Appellate Division, Third Department, by our great Governor Andrew Cuomo. Thank you Mr. Kelly for planning and implementing this event.

I have been a member of the New York State Bar Association since I was admitted to practice law. While I was monetarily distressed when I first hung out a shingle to practice law, membership in the State Bar was still a priority. It has remained critically important to me throughout my career. I "cut my teeth" as they say, as a trial lawyer in the Justice, County and Supreme Courts in this Judicial District. Always willing – actually, anxious – to try a case, I know that for many of you, like me, the courtroom is truly part of the fabric of our being. My bar association liaisons provided me with education, information and referrals that enabled me to create and maintain a successful practice.

As the world renowned Indian Poet Rabindranath Tagore wrote, "The tapestry of life's story is woven with the threads of life's ties, ever joining and breaking." Jim and Amanda are part of the tapestry of my life – Jim was my Capital District Coordinator when I ran for Supreme Court the last time. And my colleagues and the staff at the Appellate Division are also part of the tapestry of my life. You are a joy to work with and I am truly grateful for the experience.

What better life can one ask for than to pursue intellectually challenging work with people you care deeply about and to serve our community at the same time. Each day I marvel at the opportunity that I have to serve the people of this great State.

Never had I dreamed that I would become a Judge and certainly never the Presiding Judge of the Appellate Division. My roots are not dissimilar to our longest serving Presiding Justice – our beloved Anthony Cardona. As you know, Judge Cardona's dad ran a market here in Albany. His father taught him to "treat people fairly and the rest will take care of itself."

My parents never finished High School, and my dad died when I was jut a young teen, but he was a true role model. He taught me that my life should speak more loudly than my lips...that I would not just talk fairness...I had to live it.

And he taught me that I should never judge people by the clothes that they wore, or the color of their skin, or the religion they chose to practice, but rather they be from the bowery or the boardroom (and as a recovering alcoholic and successful businessman, he was familiar with both)...I should judge people only by the content of their character.

Those lessons stood the test of time. I learned them then and I live them now. I have dedicated my career to assuring that all who come before me are treated with dignity and respect.

It could be called serendipitous that I make my chambers in Ulster County in the very courthouse where Sojourner Truth, the eloquent abolitionist and champion of women's rights, won her son's freedom from slavery.

Ever mindful of the legacy of our terrific Presiding Judge Anthony Cardona, and the lessons of Sojourner Truth, I look forward to the new challenges I face, as we begin a new chapter in the history of our Court and the tapestry of my life weaves a new pattern.

EMPLOYEE-EMPLOYER RELATIONSHIP UNDER THE WORKERS' COMPENSATION LAW

The remedy provided by the Workers’ Compensation Law is the exclusive remedy of the employee against his employer ( see Acevedo v. Consolidated Edison Co., 189 AD2d 497 [1993], appeal dismissed 82 NY2d 748 ).

Because the benefits under the Workers’ Compensation Law (WCL) are limited, often injured employees would rather file a more lucrative personal injury or wrongful death claim.  Because an employee cannot sue their employer for civil remedies, the question then becomes what is an employee-employer relationship.  In other words, how do you recognize employment so that the WCL would apply and who makes that determination.  

  The courts have held that the existence of an employer-employee relationship is a question of fact for the Workers’ Compensation Board to resolve (Matter of Winglovitz v Agway, Inc., 246 AD2d 684 [1998]. Although no one factor is dispositive, consideration is given to the right to control the claimant's work; the method of payment; the right to discharge; the furnishing of equipment; and the relative nature of the work (Matter of LaCelle v New York Conference of Seventh-Day Adventists, 235 AD2d 694 [1997]).

In Matter of LaCelle,     Ron LaCelle was a student at Union  Springs  Academy  which was operated by New York Conference of Seventh-Day Adventists (alleged employer) in Cayuga  County.  He was injured while working on the farm also operated by the alleged employer and associated with the school.  Prior to the case being resolved by the Workers Compensation Board, La Celle’s counsel requested that the matter be closed pending the outcome of a civil lawsuit filed against the school and the alleged employer.  The civil court later referred the matter to the Board for a determination of whether an employee-employer relationship existed.  La Celletestified that while working on the farm he took orders from his supervisor, who had the right to fire him.  The alleged employer furnished the equipment necessary to perform the assigned tasks and he kept track of his hours by punching a time clock.  He earned an hourly wage that was paid as credit against his tuition.  In addition, if Mr. La Celle worked in excess of a specified number of hours he was eligible to receive a cash bonus.    The Court affirmed the decision of the Board that an employee-employer relationship existed, making Workers’ Compensation La Celle’s only remedy.

In Matter of Long v. Schenectady County Young Men’s Christian Association (YMCA), 227 AD2d 723 (1996)  the Court affirmed the determination that the participant in a camp counselor aide training program was an “employee” of the organization that sponsored the program for Workers’ Compensation purposes.  Karen Long received a reduction in tuition to attend camp and free room and board in exchange for her participation in the program.  Her duties included helping counselors with classes and supervising campers, with whom she shared a cabin.  She was required to obtain working papers to participate in the program.  She could have been asked to leave camp if her conduct became undesirable, and she was provided with all necessary equipment.  

In Matter of Park v. Lee,  53 AD3d 936 (2008) the Court affirmed the finding of the Board that the claimant was not an employee.  In this case the claimant owned and operated a delivery truck that delivered produce for Semok Lee.  Park testified that he owned his delivery truck, paid for the truck's gas and repairs, paid for his own helpers when necessary and listed himself as self-employed on his tax returns.

"The existence of an employer-employee relationship is a factual issue for the Board to resolve and its finding must be upheld if supported by substantial evidence," even where there is evidence in the record that could support a contrary result (Matter of Topper v Cohen's Bakery,295 AD2d 872, 872-873,[2002]). 

There are many instances where an injured person would prefer to be considered an employee in order to get workers compensation benefits and equally as many instances where an injured person would prefer to be considered not an employee so that they may file a personal injury claim.  In all instances, the Court will remand the case back to the Workers’ Compensation Board for a determination of employee-employer relationship before proceeding with a civil claim.

Camille Sianoenders, Esq.
Associate Attorney
Workers Compensation Board
E-Mail:  camille.sianoenders@wcb.state.ny.us

The above article is the opinion of the author and not the opinion of the Workers'Compensation Board.

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