MEMORANDUM AND ORDER
Appeal from a decision of the Workers’ Compensation Board, filed February 13, 2020, which ruled, among other things, that ACME Furniture was 50% liable for workers’ compensation benefits paid to claimant.
ACME Furniture Store needed a warehouse attendant and contacted Vanetys Service, LLC, a staffing agency, which sent claimant to ACME to fill that position. While working at ACME, claimant was injured when he fell off a ladder, and he subsequently filed a claim for workers’ compensation benefits. Both Vanety and ACME were placed on notice and, following a hearing to resolve, among other things, claimants proper employer, the Workers’ Compensation Law Judge established the claim for injuries to claimants right ankle and both knees, and found Vanety to be claimants employer and 100% liable for claimants benefits award. Vanety appealed, asserting that ACME should be deemed the proper employer or, in the alternative, that ACME be found jointly responsible for the claim under the doctrine of general/special employment. The Workers’ Compensation Board modified the decision of the Workers’ Compensation Law Judge, concluding that claimant was the general employee of Vanety and the special employee of ACME, and apportioning liability for claimants benefits award equally between both Vanety and ACME. ACME and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) appeal.
We are unpersuaded by the carriers contention that the Board improperly apportioned 50% liability for the claim to ACME. In finding that a general/special employment relationship existed, an issue that the carrier does not challenge, the Board relied on the fact that ACME set claimants work schedule, controlled his work activities, could terminate claimants position for unsatisfactory performance and was to be notified in the event claimant was absent from work. Vanety, on the other hand, was responsible for paying claimants wages and there was an agreement that Vanety would supply workers’ compensation coverage for those workers that it sent to ACME. It is well settled that where a claimant is employed by both a general and special employer, a workers’ compensation award “may be ordered paid by the general employer or the special employer, or both” (Matter of Cook v. Buffalo General Hosp., 308 N.Y. 480, 483, 127 N.E.2d 66 [1955]). In finding that liability for the claim should be apportioned equally between Vanety and ACME, the Board based its decision on the fact that Vanety issued claimants paychecks and provided workers’ compensation insurance coverage and ACME directed and controlled claimants work at the location where the accident occurred. The carrier asserts that, given the uncontradicted testimony that Vanety agreed to supply workers’ compensation coverage for workers that it sent to ACME, the Boards decision is inconsistent with Matter of Carlineo v. Snelling & Snelling, LLC, 90 A.D.3d 1288, 935 N.Y.S.2d 163 (2011), wherein the general employer, which contracted to carry workers’ compensation coverage for the claimant, was found to be 100% liable for the claim. Notwithstanding any alleged inconsistency, “ ‘the Board is empowered to make an award against either or both of the employers as it sees fit’ ” (Matter of Mitchell v. Eatons Trucking Serv., Inc., 165 A.D.3d 1360, 1361, 85 N.Y.S.3d 254 [2018], quoting Matter of Carlineo v. Snelling & Snelling, LLC, 90 A.D.3d at 1290, 935 N.Y.S.2d 163 [citations omitted]; accord Matter of Cook v. Buffalo General Hosp., 308 N.Y. 480, 483, 127 N.E.2d 66; Matter of Malave v. Beef & Bourbon, LLC, 114 A.D.3d 1006, 1007, 980 N.Y.S.2d 592 [2014]; Matter of Cabrera v. Two–Three–Nought–Four Assoc., 46 A.D.3d 1255, 1258, 848 N.Y.S.2d 748 [2007]), and we discern no basis upon which to disturb the apportionment determination here (see Matter of Smallwood v. Mereda Realty Corp., 75 A.D.3d 873, 874, 905 N.Y.S.2d 358 [2010]).
The assertion by the carrier that it was denied due process because it was not afforded notice and an opportunity to be heard on the issue of apportionment is belied by the record. The carrier raised the issue of apportionment at the hearing, arguing that, in the event that Vanety was not found wholly liable on the claim, Vanety should be at least 90% liable. Claimant also argued that, although there was evidence to find general/special employment, sharing liability between the two entities would be awkward. Further, Vanetys application for Board review clearly indicates that, in the event that ACME was not found to be the proper employer and solely responsible for the claim, Vanety was seeking a finding of general/special employer and that liability be shared, which ACME and the carrier could have, but did not, address in its rebuttal application. We have reviewed the carriers remaining contentions and find them to be without merit.
ORDERED that the decision is affirmed, without costs.
Ceresia, J.
Egan Jr., J.P., Clark, Pritzker and Fisher, JJ., concur.