State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 24, 2014 517997 

________________________________

In the Matter of the Claim of

ULTIMO P. GUIDOTTI,

Respondent.

SWISSPORT USA, INC., MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: June 9, 2014

Before: Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.

__________

Sedgwick LLP, New York City (J. Gregory Lahr of counsel),

for appellant.

James W. Cooper, Warrensburg, for Ultimo P. Guidotti,

respondent.

Eric T. Schneiderman, Attorney General, New York City

(Steven Koton of counsel), for Commissioner of Labor, respondent.

__________

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed January 25, 2013, which ruled that Swissport USA,

Inc. was liable for additional unemployment insurance

contributions based upon remuneration paid to claimant and others

similarly situated.

Claimant worked as an operations manager for Alitalia, Inc.

until 2007, when his position was eliminated as part of a

company-wide staff reduction. He thereafter performed the same

work but was paid by Swissport USA, Inc., a company that
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performed ground handling work for Alitalia and was asked to

assist in "hid[ing] [his] presence within Alitalia." Claimant's

work ended when Alitalia declared bankruptcy in 2008, and he

thereafter applied for unemployment insurance benefits. The

Unemployment Insurance Appeal Board ruled that claimant was an

employee of Swissport and held Swissport liable for additional

unemployment insurance contributions based upon remuneration paid

to claimant and others similarly situated. Swissport now

appeals, arguing that the Board's finding of an employer-employee

relationship was in error.

"Whether an employment relationship exists within the

meaning of the unemployment insurance law is a factual question

for the Board to resolve, and its determination in this regard —

if supported by substantial evidence in the record as a whole —

will not be disturbed" (Matter of Joyce [Coface N. Am. Ins.

Co.–Commissioner of Labor], 116 AD3d 1132, 1133-1134 [2014]

[citations omitted]; see Matter of Empire State Towing & Recovery

Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]). 

Such a relationship will generally "be found to exist where the

employer exercises control over the results produced or the means

used to achieve those results, with the latter being more

important" (Matter of Columbia Artists Mgt. LLC [Commissioner of

Labor], 109 AD3d 1055, 1056 [2013]; see Matter of Empire State

Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d at

437). 

Here, claimant executed a "consultant agreement" that

required him to perform assignments given by Swissport, provided

that all work generated by him was the property of Swissport, and

prohibited him from disclosing information regarding that work

except as authorized by Swissport. Claimant worked regular hours

at an office, was required to attend meetings conducted by

Swissport, gave notice to Swissport when he traveled or took time

off, and testified that he did not feel free to accept outside

work. He was further reimbursed for his travel expenses by

Swissport, and received compensation to cover his health

insurance premiums. Lastly, while claimant continued to perform

his duties for Alitalia, he confirmed in the course of his

testimony that he viewed that work as being an assignment for

Swissport. Thus, notwithstanding evidence to the contrary,
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substantial evidence in the record supports the Board's decision

(see Matter of Joyce [Coface N. Am. Ins. Co.–Commissioner of

Labor], 116 AD3d at 1134-1135; Matter of Lambert [Staubach Retail

Servs. New England, LLC–Commissioner of Labor], 18 AD3d 1049,

1050-1051 [2005]).

Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.,

concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court