Claim of Morrison v. T & D Painting, LLC , 861 N.Y.S.2d 867 ( 2008 )

Mercure, J.P.

Appeal from a decision of the Workers’ Compensation Board, filed September 18, 2007, which ruled that claimant was not an employee of T & D Painting, LLC and denied his claim for workers’ compensation benefits.

Claimant was scraping windows when a support platform collapsed beneath him, causing him to fall to the ground and fracture his ankle. Claimant filed an application for workers’ compensation benefits as an employee of T & D Painting, LLC, which, in turn, contended that claimant had been hired as an independent contractor. Following a hearing, a Workers’ Compensation Law Judge determined, among other things, that an employer-employee relationship existed between claimant and T & D Painting, and awarded benefits to claimant. Upon review, however, the Workers’ Compensation Board reversed and the claim was disallowed. Claimant now appeals.

On July 15, 2008, claimant’s application for full Board review was granted, the decision filed September 18, 2007 was rescinded and the case was referred to the Board for further consideration. Accordingly, the appeal must be dismissed as moot (see Matter of Fabiano v Sears, 27 AD3d 884 [2006]).

Rose, Kane, Malone Jr. and Kavanagh, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.

[By unpublished motion entered Sept. 16, 2008 (2008 NY Slip Op 83276), a prior decision entered July 31, 2008 was vacated and replaced with the above text.]