State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 519608 

________________________________

In the Matter of the Claim of

CHRISTOPHER L. WATSON,

Respondent.

PARTSFLEET INC., MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: February 24, 2015

Before: Peters, P.J., McCarthy, Rose and Devine, JJ.

__________

Littler Mendelson, PC, New Haven, Connecticut (Stephen

Rosenberg of counsel), for appellant.

Dan M. Walters, Fairpoint, for Christopher L. Watson,

respondent.

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

A. Foshee of counsel), for Commissioner of Labor, respondent.

__________

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed November 4, 2013, which ruled that claimant

was entitled to receive unemployment insurance benefits and that

Partsfleet Inc. was liable for additional unemployment insurance

contributions on remuneration paid to claimant and others

similarly situated.

Partsfleet Inc. is in the business of providing logistics

and dispatch services for the delivery of auto parts and related

products to its customers. It entered into a written agreement
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with Subcontracting Concepts, Inc. (hereinafter SCI) to broker

transportation services for its business. From November 2009

until May 2010, claimant worked as a delivery driver servicing

Partsfleet's customers. After claimant ceased providing delivery

services, he filed a claim for unemployment insurance benefits. 

Following extended proceedings, the Unemployment Insurance Appeal

Board ruled that an employment relationship existed between

claimant and Partsfleet entitling claimant to receive benefits. 

In addition, the Board assessed Partsfleet for additional

unemployment insurance contributions based on remuneration paid

to claimant and others similarly situated. Partsfleet appeals.

Initially, it is well settled that the existence of an

employment relationship is a factual question for the Board to

resolve and its decision will be upheld if supported by

substantial evidence (see Matter of Concourse Ophthalmology

Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Spielberger

[Commissioner of Labor], 122 AD3d 998, 999 [2014]). The

pertinent inquiry is whether the purported employer retained

control over the results produced or the means used to produce

those results, with control over the latter being more important

(see Matter of Empire State Towing & Recovery Assn., Inc.

[Commissioner of Labor], 15 NY3d 433, 437 [2010]; Matter of

Armison [Gannett Co., Inc.–Commissioner of Labor], 122 AD3d 1101,

1102 [2014], lv dismissed 24 NY3d 1209 [2015]).

Here, although Partsfleet had a contract with SCI and it

was SCI that issued claimant's paychecks, SCI had no involvement

in the services that claimant performed. Claimant was retained

as a delivery driver following a short interview with a

Partsfleet representative and a check of his motor vehicle

record. Partsfleet trained him on the operation of a scanner

used to schedule and track customer deliveries, and briefed him

on the requirements of the customers. The delivery schedule was

set by Partsfleet based upon customer requests, and it monitored

deliveries via the scanner. Claimant was paid based on the

particular delivery route that he had completed at a rate that

Partsfleet set with its customer, and claimant was paid if he

completed the route regardless of whether the customer paid

Partsfleet. Claimant worked out of a warehouse that belonged to

one of Partfleet's customers and that is where he left his
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completed route sheets, which were then collected by a Partsfleet

representative. Any problems with deliveries were generally

handled by a Partsfleet representative. Although claimant could

work for other companies and find replacements if he could not

work a particular route, the replacements had to be approved by

Partsfleet. The foregoing establishes that Partsfleet maintained

control over important aspects of claimant's work as was

necessary to insure that its customers' needs were satisfied. 

Accordingly, substantial evidence supports the Board's finding

that an employment relationship existed between claimant and

Partsfleet thereby entitling him to receive benefits (see Matter

of Lombard [SOH Distr. Co., Inc.–Commissioner of Labor], 52 AD3d

981, 982 [2008]; Matter of Ganapathy [Zurich Depository Corp.–

Sweeney], 243 AD2d 981, 981 [1997]). 

We reach a different conclusion, however, with respect to

the Board's assessment of additional contributions based on

remuneration paid to individuals who were similarly situated to

claimant. The scope of the hearing was specifically limited to

the issue of whether there was an employment relationship between

claimant and Partsfleet. Significantly, no evidence was adduced

pertaining to other individuals who provided delivery services.1

In view of this, we find that substantial evidence is lacking

with respect to the assessment of additional contributions based

on the remuneration paid to these similarly situated individuals,

and the Board's decision in this regard must be reversed (see

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

Labor], 125 AD3d 1223, 1227 [2015]). 

Peters, P.J., McCarthy, Rose and Devine, JJ., concur.

1 Notably, there is some indication that the arrangement

that Partsfleet had with the delivery drivers changed subsequent

to May 2010 when claimant ceased making deliveries.
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ORDERED that the decisions are modified, without costs, by

reversing so much thereof as found that all persons similarly

situated to claimant are employees of Partsfleet Inc., and, as so

modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court