| Matter of Jennings v Avanti Express, Inc. |
| 2012 NY Slip Op 00069 [91 AD3d 999] |
| Jnury 5, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Sandra Jennings,Respondent, v Avanti Express, Inc., Appellant. Workers' Compensation Board,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Marjorie S. Leff of counsel), forWorkers' Compensation Board, respondent.
Garry, J. Appeal from a decision of the Workers' Compensation Board, filed April 2, 2010,which ruled that an employer-employee relationship existed between claimant's husband andAvanti Express, Inc. and awarded claimant workers' compensation death benefits.
Claimant's husband (hereinafter decedent) died in a motor vehicle accident while working asa courier for the employer. Claimant thereafter applied for workers' compensation death benefits,and the employer controverted the claim on the basis that decedent was an independentcontractor and not an employee. Following a hearing, the Workers' Compensation Law Judgefound that there was an employer-employee relationship between decedent and the employer andawarded benefits. The Workers' Compensation Board affirmed, and the employer now appeals.
Whether an employer-employee relationship exists is a factual issue to be resolved by theBoard and such determination will be upheld if substantial evidence exists in the record tosupport it (see Matter of Duma vBaca, 83 AD3d 1228, 1228 [2011]; Matter of Brown v City of [*2]Rome, 66AD3d 1092, 1092 [2009]; Matter ofEllingwood v Liberty Group Publ., Inc., 38 AD3d 1108, 1109 [2007]). Factors relevantto the determination of an employer-employee relationship include the right to control the allegedemployee's work and set his or her schedule, the manner and method of payment, the right todischarge and the furnishing of equipment (see Matter of Duma v Baca, 83 AD3d at1228-1229; Matter of Brown v City of Rome, 66 AD3d at 1092). The record reveals thatdecedent's delivery schedule was determined by the employer, and the employer provideddecedent with a vehicle, an E-ZPass for the payment of tolls and GPS device. Further, theemployer required decedent to dress in a certain manner and the employer paid decedent througha payroll service on a weekly basis according to a formula devised by the employer. We thus findthat the Board's determination is supported by substantial evidence, and must be affirmed, despitethe existence of evidence that could support a contrary conclusion (see Matter of Duma vBaca, 83 AD3d at 1229; Matter ofEnriquez v Home Lawn Care & Landscaping, Inc., 77 AD3d 1149, 1151 [2010];Matter of Brown v City of Rome, 66 AD3d at 1093).
Peters, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the decision isaffirmed, without costs.