| Matter of Automotive Serv. Sys., Inc. (Commissioner ofLabor) |
| 2008 NY Slip Op 08381 [56 AD3d 854] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Automotive Service Systems, Inc., Appellant.Commissioner of Labor, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), forrespondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 8, 2007,which assessed Automotive Service Systems, Inc. for additional unemployment insurancecontributions.
Automotive Service Systems, Inc. is in the business of dispatching drivers to clients in needof transportation services. It maintains a list of between 30 and 50 drivers compiled throughreferrals from drivers it has previously used. The Unemployment Insurance Appeal Board foundthat an employment relationship existed between Automotive and the drivers and assessed itadditional unemployment insurance contributions in the amount of $19,754.76. Automotiveappeals.
Initially, we note that the existence of an employment relationship is a factual issue for theBoard to decide and its determination will be upheld if supported by substantial evidence (seeMatter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Parisi [Commissioner ofLabor], 54 AD3d 456, 457 [2008]). While no single factor is determinative, control overthe results produced or the means used to achieve those results are pertinent considerations, withthe latter being more important (see Matter of Ted Is Back Corp. [Roberts], 64 NY2d725, 726 [1984]; Matter of Booth [EagleIntl., Inc.—Commissioner of Labor], 26 AD3d 692, 692-693 [2006]).[*2]
In the case at hand, evidence was adduced thatAutomotive paid the drivers a set percentage of the fee it charged, plus gratuities and expenses,without regard to whether it received payment from its clients, and it tendered payment after thedrivers completed the trip sheets it supplied. In addition, it provided the drivers with specificpickup and drop-off information and required them to arrive 10 minutes in advance, weardark-colored business attire, drive a luxury sedan and hold up a sign with either Automotive'sname or the name of the client's company. Automotive also provided workers' compensationcoverage and fielded all customer complaints. Notwithstanding the existence of evidence thatwould support a contrary conclusion, the foregoing indicates that Automotive exercisedsufficient control over important aspects of the drivers' work to be considered their employer (see Matter of Human Performance, Inc.[Commissioner of Labor], 28 AD3d 971, 972 [2006]). Inasmuch as substantial evidencesupports the Board's decision, we decline to disturb it (see e.g. Matter of De Paiva [OlympicLimousine—Commissioner of Labor], 270 AD2d 534 [2000]; Matter ofFreidenberg [Limousine Resources Mgt. Corp.—Sweeney], 235 AD2d 866 [1997];cf. Matter of Pavan [UTOG 2-Way Radio Assn.—Hartnett], 173 AD2d 1036[1991], lv denied 78 NY2d 857 [1991]).
Cardona, P.J., Peters, Carpinello, Lahtinen and Kavanagh, JJ., concur. Ordered that thedecision is affirmed, without costs.