State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 19, 2015 520224 

________________________________

In the Matter of the Claim of

DAVID L. HAROLD,

Respondent.

LEONARD'S TRANSPORTATION, MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: October 19, 2015

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

__________

Bond, Schoeneck & King, PLLC, Rochester (James C. Holahan

of counsel), for appellant.

Michelle I. Rosien, Philmont, for David L. Harold,

respondent.

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

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

__________

Rose, J.

Appeals (1) from two decisions of the Unemployment

Insurance Appeal Board, filed February 24, 2014, which, among

other things, ruled that Leonard's Transportation was liable for

additional unemployment insurance contributions on remuneration

paid to claimant and others similarly situated, and (2) from two

decisions of said Board, filed April 30, 2014, which denied an

application by Leonard's Transportation for reopening and

reconsideration. 
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From April 2006 to October 2009, claimant, a truck driver,

hauled freight for Leonard's Transportation (hereinafter

Leonard), a trucking company that provides freight transportation

services to its customers. To accomplish this task, claimant,

who worked under two independent contractor agreements with

Leonard, utilized a truck that he leased from Leonard's related

company. After claimant's employment with Leonard ended, he

applied for unemployment insurance benefits, and the Department

of Labor determined that he was an employee entitled to

unemployment benefits and, as such, that Leonard was liable for

additional contributions on remuneration paid to claimant and

others similarly employed as drivers. Following a hearing, an

Administrative Law Judge sustained that determination, and the

Unemployment Insurance Appeal Board adopted the Administrative

Law Judge's findings of fact and opinion and subsequently denied

Leonard's application for reconsideration. Leonard appeals. 

We affirm. "Whether an employer-employee relationship

exists is a factual determination for the Board, and its decision

will be upheld if supported by substantial evidence" (Matter of

Hunter [Gannett Co.–Commissioner of Labor], 125 AD3d 1166, 1167

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

Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734,

736 [1983]). While no single factor is determinative, "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"

(Matter of Watson [Partsfleet Inc.—Commissioner of Labor], 127

AD3d 1461, 1462 [2015]; see Matter of Empire State Towing &

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

[2010]). Here, the record contains substantial evidence that

Leonard exercised the requisite control over claimant's work to

establish his status as an employee. While some indicia of

control by Leonard was mandated by federal regulations (see 49

USC §§ 13906, 14102 [a] [3]; 49 CFR 40.1 et seq., 376.12 [b], [c]

[1], [4]; [d]–[f], [h]–[k]; 382.101 et seq., 387.9, 396.1 et

seq.), which, standing alone, "is not sufficient to establish an

employer-employee relationship" (Matter of Cohen [Just Energy

Mktg. Corp.—Commissioner of Labor], 117 AD3d 1112, 1113 [2014],

lv dismissed 24 NY3d 928 [2014]; see 49 CFR 376.12 [c] [4];

Matter of Choto v Consolidated Lbr. Transp., Inc., 82 AD3d 1369,
-3- 520224 

1370 [2011]), the extent to which regulations governed the

parties' contractual relationship can still be considered as part

of the overall calculus of control exercised over claimant (see

Matter of Cohen [Just Energy Mktg. Corp.—Commissioner of Labor],

117 AD3d at 1113; Matter of Jimenez [C & I Assoc., Inc.—

Commissioner of Labor], 74 AD3d 1587, 1589 [2010]). Under the

lease, claimant was not permitted to sublease or to allow any

other party to use or operate the trucks without consent and was

required under the parties' agreements to use the trucks that he

leased from Leonard's related company (see Matter of Watson

[Partsfleet Inc.—Commissioner of Labor], 127 AD3d at 1462; Matter

of Davis [RTC Transp.—Roberts], 111 AD2d 1030, 1031 [1985]). 

Claimant was also bound by a one-year noncompetition restriction

prohibiting him from soliciting, transporting or handling

business of any of Leonard's customers during the term of their

agreements or for one year thereafter (see Matter of Youngman [RB

Humphreys Inc.—Commissioner of Labor], 126 AD3d 1225, 1226

[2015], lv dismissed 25 NY3d 1192 [2015]). 

Further, claimant was required to comply with Leonard's

safety and procedures manual, which covered, among other things,

safety concerns, delivery procedures and the scheduling of

vacations. Although claimant had no set schedule, he was

expected to keep Leonard informed daily of his status while

hauling freight (see Matter of Duffy [North Am. Van Lines—

Hartnett], 172 AD2d 914, 914 [1991]; Matter of Blount [Whalen's

Moving & Stor. Co.—Hartnett], 154 AD2d 849, 849 [1989]), and to

contact Leonard if he anticipated any delay of delivery (see

Matter of Wright [Central Transp., Inc.—Commissioner of Labor],

58 AD3d 988, 989-990 [2009]; Matter of McKenna [Can Am Rapid

Courier—Sweeney], 233 AD2d 704, 704 [1996], lv denied 89 NY2d 810

[1997]). Claimant also did not haul freight for any other

company or customers, and claimant did not deal directly with

customers because Leonard handled the orders, billing, customer

service and complaints (see Matter of Youngman [RB Humphreys

Inc.—Commissioner of Labor], 126 AD3d at 1226). In addition to

claimant receiving freight assignments directly from Leonard,

Leonard also established the rates for pickup and delivery

services (see Matter of Short [Ranger Transp.—Sweeney], 233 AD2d

676, 677 [1996]; Matter of Davis [RTC Transp.—Roberts], 111 AD2d

at 1030). Claimant was also instructed to be courteous and to
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represent the company in a professional manner at all times and

to never argue with customers (see Matter of Kelly [Frank Gallo,

Inc.—Commissioner of Labor], 28 AD3d 1044, 1044 [2006], lv

dismissed 7 NY3d 844 [2006]; Matter of Webley [Graphic

Transmissions—Roberts], 133 AD2d 885, 886 [1987]). Claimant was

directed, prior to receiving payment from Leonard, to submit

weekly paperwork, which included trip recaps, signed bills of

lading, lumper receipts, toll tickets, fuel receipts and logs,

and he received payment from Leonard directly regardless of

whether the customer paid Leonard (see Matter of Youngman [RB

Humphreys Inc.—Commissioner of Labor], 126 AD3d at 1226; Matter

of Wright [Central Transp., Inc.—Commissioner of Labor], 58 AD3d

at 988). Thus, notwithstanding evidence that could support a

different result, the foregoing facts provide substantial

evidence to support the Board's finding of an employer-employee

relationship existed under the circumstances of this case. 

Leonard's remaining arguments are either being raised for the

first time in its reply brief and, therefore, not properly before

us (see Matter of Garcia v Prack, 128 AD3d 1244, 1245 [2015]), or

have been examined and found to be lacking in merit. 

McCarthy, J.P., Devine and Clark, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court