| Matter of Best (Lusignan—Commissioner of Labor) |
| 2012 NY Slip Op 03917 [95 AD3d 1536] |
| May 17, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of the Claim of Christopher L. Best,Respondent. Joseph A. Lusignan Jr., Doing Business as JLJ Contracting, Appellant;Commissioner of Labor, Respondent. |
—[*1] Cynthia Feathers, Glens Falls, for Christopher L. Best, respondent. Eric T. Schneiderman, Attorney General, New York City (Mary Hughes of counsel), forCommissioner of Labor, respondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 12, 2011,which ruled that Joseph A. Lusignan Jr. was liable for unemployment insurance contributionsbased on remuneration paid to claimant and others similarly situated.
Joseph A. Lusignan Jr. performed services primarily as an installer of both commercial andresidential flooring through contracts with both flooring stores and general contractors. WhenLusignan would receive a contract for a job, he had a number of subcontractors, includingclaimant, that he would contact, give the particulars of the job, including what the job would pay,and inquire as to whether the subcontractor was interested in accepting the job. In December2008, as relevant here, the Commissioner of Labor issued an initial determination finding thatLusignan was claimant's employer and, as such, was liable for unemployment insurancecontributions on behalf of claimant and all other persons similarly employed. Following ahearing, an Administrative Law Judge determined that Lusignan did not exercise a sufficientlevel of supervision, direction and control over the activities of claimant to establish an [*2]employer-employee relationship. On administrative appeal, theUnemployment Insurance Appeal Board reversed and affirmed the initial determination.Lusignan now appeals.
We reverse. The existence of an employer-employee relationship is established "when theevidence shows that the employer exercises control over the results produced or the means usedto achieve the results," with control over the means the more important factor to consider (Matter of Empire State Towing & RecoveryAssn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]; see Matter of Leazard [TestQuest,Inc.—Commissioner of Labor], 74 AD3d 1414, 1414 [2010]). Moreover,incidental control over the results produced, alone, will not constitute substantial evidence that anemployment relationship exists (see Matter of Empire State Towing & Recovery Assn., Inc.[Commissioner of Labor], 15 NY3d at 437; Matter of International Student Exch.[Commissioner of Labor], 302 AD2d 834, 835-836 [2003]).
Here, the record establishes that the subcontractors were free to turn down work and work forLusignan's competitors. After accepting a job, the subcontractors would receive the supplies andwork plans from the store or general contractor and Lusignan provided no training or direction asto how the work was to be performed. The work schedule was determined by the store or generalcontractor and the subcontractors set their own work hours, could take days off at their owndiscretion and were not required to report to Lusignan on a regular basis. The subcontractorswere responsible for furnishing their own tools and Lusignan did not reimburse them forexpenses. Lusignan only paid the subcontractors after he had been paid for a job, paid no benefitsand did not maintain insurance to cover the subcontractors. Finally, the store or generalcontractor would handle customer complaints.
Accordingly, while some factors cited by the Board constituted evidence of incidentalcontrol, the record as a whole does not contain sufficient evidence to establish overall controlover important aspects of the subcontractors' work so as to indicate an employer-employeerelationship (see Matter of Leazard [TestQuest, Inc.—Commissioner of Labor], 74AD3d at 1415-1416; Matter of Rosen[Vidicom, Inc.—Commissioner of Labor], 73 AD3d 1352, 1354 [2010], lvdenied 15 NY3d 706 [2010]).
Peters, P.J., Rose, Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the decision isreversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board forfurther proceedings not inconsistent with this Court's decision.