Calendar Date: April 24, 2018Before: Lynch, J.P., Devine, Mulvey, Aarons and Pritzker, JJ.__________Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel),for appellant.Foley, Smit, O’Boyle & Weisman, Hauppauge (Jennifer K.Arcarola of counsel), for 129 Avenue D, LLC and another,respondents.__________Aarons, J.Appeal from a decision of the Workers’ Compensation Board,filed November 3, 2016, which ruled that an employer-employeerelationship did not exist between claimant and 129 Avenue D,LLC.Claimant, a construction and demolition worker, filed aclaim for workers’ compensation benefits contending that hesustained a work-related injury to his right eye in July 2015when he fell from a ladder while changing a light bulb. At thetime of the incident, claimant was assisting Rolando Dominguez, abuilding superintendent employed by 129 Avenue D, LLC (aresidential and commercial property company). Despite someinitial confusion on this point, the identity of the allegedemployer (129 Avenue D, LLC) and its workers’ compensationcarrier ultimately was established, and the matter proceeded to ahearing in February 2016. After considering the testimonyoffered by claimant and Ron Maseroni, a principal of 129 AvenueD, LLC, the Workers’ Compensation Law Judge (hereinafter WCLJ)disallowed the claim, finding that claimant was not an employeeof 129 Avenue D, LLC. Upon administrative review, the Workers’Compensation Board affirmed, prompting this appeal by claimant.We affirm. Preliminarily, it is apparent from the Board’sdecision that it expressly adopted the WCLJ’s findings of factand opinion following “a complete and independent review of therecord”; as such, we are satisfied that the Board’s decisioncomplied with the requirements of Workers’ Compensation Law § 23(see Matter of Pereira-Jersey v Rockland Community Coll., 151AD3d 1154, 1156 [2017]; Matter of Bonner v Brownell Steel, Inc.,57 AD3d 1329, 1329 [2008]). Although claimant also faults theBoard for failing to address certain issues, including whetherclaimant could be deemed to be an employee of Dominguez orwhether Dominguez, in turn, could be deemed to be an agent of 129Avenue D, LLC, “the Board is not obligated to consider an issuethat was not raised and developed at the hearing before the WCLJ”(Matter of Hernandez v Excel Recycling Corp., 31 AD3d 1091, 1092[2006] [internal quotation marks and citation omitted]).Additionally, these claimed deficiencies were not raised inclaimant’s application for Board review (see Matter of Duncan vJohn Wiley & Sons, Inc., 137 AD3d 1430, 1431 [2016]). Hence,claimant’s arguments have not been preserved for ourconsideration (see generally Matter of Khan v New York StateDept. of Health, 96 NY2d 879, 880 [2001]).Finally, “[w]hether an employer-employee relationshipexists is a factual question for resolution by the Board and itsdetermination must be upheld so long as it is supported bysubstantial evidence” (Matter of Rivas v Waldman, 37 AD3d 916,916 [2007]; see Matter of Colamaio-Kohl v Task Essential Corp.,157 AD3d 1103, 1104 [2018]; Matter of Mendoza v Dolgetta, 81 AD3d1043, 1044 [2011]). “In making such a determination, relevantfactors to be considered include the right to control theclaimant’s work, the method of payment, the right to discharge,the furnishing of equipment and the relative nature of the work”(Matter of Bran v Wimbish, 73 AD3d 1378, 1379 [2000] [internalquotation marks and citations omitted], lv dismissed 15 NY3d 818[2010]; see Matter of Colamaio-Kohl v Task Essential Corp., 157AD3d at 1104).Claimant testified that he was contacted by Maseroni toperform certain demolition work and, while on the premises forthat purpose, claimant noticed that two light bulbs in a hallwayhad burned out. According to claimant, he then sought outDominguez, who instructed him to replace the light bulbs –setting into motion the chain of events leading to claimant’salleged injury. Maseroni, however, testified that claimant wasnot on the alleged employer’s payroll, and that he neither hiredclaimant to perform work for 129 Avenue D, LLC nor otherwisedirectly assigned any tasks to claimant. Maseroni furthertestified that, with respect to any repair projects assigned toDominguez, it was up to Dominguez to either “bring[] in[whatever] resources he wants or do[] it himself” — a decisionover which Maseroni “[did not] really have control.” Thisconflicting testimony presented a credibility determination forthe WCLJ and the Board to resolve (see Matter of Rivas v Waldman,37 AD3d at 916). The record further reflects that, with oneexception, claimant was paid in cash by Dominguez or via checksmade payable to Dominguez and signed over to claimant. Underthese circumstances, we discern no basis upon which to disturbthe Board’s decision. Claimant’s remaining arguments, to theextent not specifically addressed, have been examined and foundto be lacking in merit.Lynch, J.P., Devine, Mulvey and Pritzker, JJ., concur.ORDERED that the decision is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
