State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 6, 2016 522371 

________________________________

In the Matter of the Claim of

VICTOR E. GUZMAN-DIMAS,

Respondent,

v

FRALEXA, LLC., et al.,

Respondents, MEMORANDUM AND ORDER

and

TRAVELERS INDEMNITY COMPANY,

Appellant.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: September 16, 2016

Before: Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.

__________

Dickie, McCamey & Chilcote, PC, White Plains (Beverly M.

Barr of counsel), for appellant.

__________

Aarons, J.

Appeal from a decision of the Workers' Compensation Appeal

Board, filed March 31, 2015, which ruled that Travelers Indemnity

Company was the liable workers' compensation carrier. 

Claimant's employer, Fralexa, LLC, is a New Jersey

corporation with its sole office located in New Jersey. The

employer maintained New Jersey workers' compensation insurance

through Travelers Indemnity Company. In March 2013, claimant, a

delivery laborer, sustained work-related injuries after falling
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off the back of a delivery truck while delivering and unloading a

mattress in New York. Claimant, a resident of New York, filed a

claim for workers' compensation benefits in New York. Travelers

controverted the claim on the ground that the claim was not

covered under its policy in effect at the time because it did not

cover the employer for workers' compensation injuries occurring

outside of New Jersey. Following a hearing, a Workers'

Compensation Law Judge found, among other things, that Travelers

was the proper carrier. The Workers' Compensation Board

affirmed, finding that Travelers failed to produce evidence,

including a copy of its policy showing its exclusions, at the

hearing demonstrating that its policy excluded coverage for any

employee hired in New York to perform work for the employer. 

Travelers now appeals. 

We reverse. Initially, we note that, contrary to the

Board's finding, the record indicates that the policy that

Travelers issued to the employer was before the Board. The

prehearing conference statement identified the policy issued to

the employer and noted that it was attached to that statement,

and the Workers' Compensation Law Judge was informed at the

hearing that the policy was in the Board's file. The application

for Board review also identified the policy, indicating that the

document was in the Board's file and attached to the prehearing

conference statement. Thus, the record amply demonstrates that

Travelers produced the at-issue policy (compare Matter of Cerbasi

v County Metal & Glass, Inc., 115 AD3d 1084, 1085 [2014]). 

In any event, upon review of the policy that Travelers

issued to the employer that is in the record before us, we agree

with Travelers' contention that the conditions for coverage in

New York were not met. The policy that Travelers issued to the

employer contained a "limited other states insurance

endorsement." In order for Travelers to pay benefits for a

workers' compensation claim in New York under that endorsement,

various conditions were required to be met, including, among

other things, that the claimant seeking benefits must have been

hired in New Jersey and, at the time of injury, the employee must

have been principally employed in New Jersey. Claimant

testified, however, that he was hired in New York in April 2011,

picked up each morning in New York and dropped off at the end of
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each work day in New York. Further, claimant explained that his

job duties consisted of delivering merchandise to locations

throughout Long Island and that he never went to, or worked in,

New Jersey. Accordingly, because claimant was neither hired in

New Jersey nor worked there, the record evidence demonstrates

that not all of the conditions were met for the policy's

endorsement to apply to his workers' compensation claim in New

York (see Matter of Chmura v T&J Painting Co., Inc., 83 AD3d

1193, 1194-1195 [2011]; Matter of Chmura v T&J Painting Co.,

Inc., 64 AD3d 987, 988 [2009]).1 

Peters, P.J., McCarthy, Garry and Clark, JJ., concur.

ORDERED that the decision is reversed, without costs, and

matter remitted to the Workers' Compensation Board for further

proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 We note that Workers' Compensation Law § 50 (2) provides

that an employer with employees in New York must secure workers'

compensation insurance "through a policy issued under the law of

this state." Thus, because the policy issued by Travelers did

not list New York in Item 3A, the employer was required to obtain

a New York workers' compensation insurance policy that listed New

York in Item 3A (see Matter of Estate of Velasquez v NGA Constr.

Co., Inc., 112 AD3d 1051, 1052 [2013]; Matter of Chmura v T&J

Painting Co., Inc., 83 AD3d at 1194-1195).