State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 10, 2016 520644 

________________________________

In the Matter of the Claim of

SYDNEE WAGGONEER,

Respondent.

PRESTON LEASING CORPORATION, MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: January 13, 2016

Before: Peters, P.J., Garry, Egan Jr., Rose and Clark, JJ.

__________

Ganz Wolkenbreit & Siegfeld LLP, Albany (Matthew M. Zapala

of counsel), for appellant.

Samuel D. Castellino, Big Flats, for Sydnee Waggoneer,

respondent.

Eric T. Schneiderman, Attorney General, New York City (Mary

Hughes of counsel), for Commissioner of Labor, respondent. 

__________

Rose, J.

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed August 15, 2014, which ruled, among other

things, that Preston Leasing Corporation was liable for

additional unemployment insurance contributions on remuneration

paid to claimant and others similarly situated. 

Preston Leasing Corporation provides localized promotional

marketing services for goods and products manufactured by its
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clients in the cosmetics and alcohol industries. Claimant, as a

promotional sales model who provided services to Preston,

distributed samples of the clients' products and free merchandise

featuring those clients' logos or emblems. When claimant's work

at Preston came to an end, she filed an application for

unemployment insurance benefits, and the Department of Labor

determined that claimant was an employee entitled to benefits and

that Preston was liable for additional contributions on

remuneration paid to claimant and others similarly employed. 

Following a hearing, an Administrative Law Judge sustained those

determinations and, upon administrative appeal, the Unemployment

Insurance Appeal Board affirmed. Preston now appeals. 

We affirm. "Whether an employment relationship exists

within the meaning of the unemployment insurance law is a

question of fact, no one factor is determinative and the

determination of the . . . [B]oard, if supported by substantial

evidence on the record as a whole, is beyond further judicial

review even though there is evidence in the record that would

have supported a contrary conclusion" (Matter of Isaacs [Speedy

Media Assoc., LLC—Commissioner of Labor], 125 AD3d 1077, 1078

[2015] [internal quotation marks and citations omitted]; see

Matter of Viau [New York State Off. of Ct. Admin.—Commissioner of

Labor], 125 AD3d 1223, 1224-1225 [2015]; Matter of Ruano [Legal

Interpreting Servs., Inc.—Commissioner of Labor], 118 AD3d 1088,

1088 [2014], lv dismissed 24 NY3d 1039 [2014]). "An employeremployee relationship exists when the evidence shows that the

employer exercises control over the results produced or the means

used to achieve the results [although] control over the means is

the more important factor to be considered" (Matter of Empire

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

NY3d 433, 437 [2010] [internal quotation marks and citations

omitted]; accord Matter of Isaacs [Speedy Media Assoc., LLC—

Commissioner of Labor], 125 AD3d at 1078). 

Here, Preston directed potential promotional sales models

to fill out an application and to provide references. Preston

established the pay rates, paid claimant directly regardless of

whether a client paid Preston and, at times, reimbursed claimant

for certain travel or incidental expenses. Preston determined

the time, date and location of the promotional events, as well as
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the particular products that claimant would be required to

distribute at the events (see Matter of North [Young People's

Chorus of N.Y.—Commissioner of Labor], 133 AD3d 1071, 1072

[2015]). Prior to a promotional event, Preston's managers

instructed claimant to dress appropriately (see id.) and not to

distribute products at the events that were not being promoted. 

The managers also explained what was expected of her at the event

and informed her of what she should say at the events about the

clients' products. If claimant could not report for a scheduled

event or complete her shift, she was expected to contact a

manager at Preston. Following an event, she was expected to fill

out a Preston "recap form" summarizing her time spent at and

information about the event, and she was required to submit the

form to a manager at Preston. While claimant could and did work

for other companies, she did not maintain her own business for

promotional sales marketing. On occasion, Preston would contact

its clients to review and critique claimant's work at the

promotional events, and Preston directly handled clients'

complaints (see Matter of Chopik [Newman—Hartnett], 145 AD2d 747,

749-750 [1988]; see also Matter of North [Young People's Chorus

of N.Y.—Commissioner of Labor], 133 AD3d at 1072). Accordingly,

we conclude that there is substantial evidence to support the

Board's finding of an employer-employee relationship (see Matter

of Caufield-Ori [Blumberg–Sweeney], 233 AD2d 558, 559 [1996], lv

dismissed 89 NY2d 982 [1997]; Matter of McDonald/Richards, Inc.

[Sweeney], 232 AD2d 916, 917 [1996], lv denied 89 NY2d 806

[1997]; Matter of Horn [Hudacs], 201 AD2d 816, 816-817 [1994];

Matter of Horne [Colonia, Inc.–Hudacs], 188 AD2d 922, 922

[1992]). 

Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur.
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ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court