Claim of McGrath v. John Arborio, Inc. — 57 A.D.2d 972

Majority

p. 972

In the Matter of the Claim of Jack McGrath, Respondent, v John Arborio, Inc., et al., Appellants, and County Trucking Co. et al., Respondents. Workmen’s Compensation Board, Respondent.

Appeal from decisions of the Workmen’s Compensation Board, filed July 17, 1975 and November 17, 1975, which awarded benefits to the claimant and found that the appellant John Arborio, Inc., was an employer. Upon this appeal the appellant employer and its insurance carrier argue that the board erred and instead of finding John Arborio, Inc., the employer should have found the employer to be County Trucking Co. The appellants raise no question of deviation and do not dispute the entitlement of claimant to benefits. While the record contains some evidence that the claimant was the employee of County Trucking, it is unequivocally established that the claimant thought he was driving for John Arborio, Inc., in taking the truck to a new destination and that the proper representative of the employer told him to drive the truck. Under such circumstances, there is substantial evidence

p. 973

that the employer at the time of accidental injuries sustained while driving the truck was John Arborio, Inc. Decisions affirmed, with one bill of costs to respondents filing a brief against the appellants. Koreman, P. J., Greenblott, Sweeney, Mahoney and Herlihy, JJ., concur.