State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 19, 2015 519458 

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In the Matter of the Claim of

PAUL C. McALEVEY,

Respondent.

AGEWELL PHYSICAL THERAPY &

 WELLNESS, P.C., MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: January 20, 2015

Before: Lahtinen, J.P., Garry, Lynch and Clark, JJ.

__________

Capell, Barnett, Matalon & Schoenfeld LLP, Jericho (Joseph

Milano of counsel), for appellant.

Catherine A. Barber, Albany, for Paul C. McAlevey,

respondent.

__________

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed September 24, 2013, which ruled that Agewell

Physical Therapy & Wellness, P.C. was liable for unemployment

insurance contributions based on remuneration paid to claimant

and others similarly situated.

Agewell Physical Therapy & Wellness, P.C. is a licensed

physical and occupational therapy center, specializing in

treating geriatric patients, most of whom require transportation

to appointments. Agewell provides this service as a courtesy

using its own vehicles – including four cars and two wheelchairaccessible vans – and a pool of drivers, formerly including
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claimant. In 2009, the Department of Labor granted claimant's

application for unemployment insurance benefits. Following a

hearing, an Administrative Law Judge overruled the initial

determination and found that claimant and all others similarly

situated were independent contractors ineligible to receive

benefits. Upon remand by the Unemployment Insurance Appeal Board

for a new hearing due to lack of a complete transcript, the

Administrative Law Judge upheld the initial determination

granting benefits. The Board affirmed, prompting this appeal.

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 appeal board, 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 Concourse

Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]

[citations omitted]; accord Matter of Empire State Towing &

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

[2010]). An employment relationship will be found "when the

evidence shows that the employer exercises control over the

results produced or the means used to achieve the results," with

"'control over the means [being] the more important factor'"

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

[Commissioner of Labor], 15 NY3d at 437, quoting Matter of Ted is

Back Corp. [Roberts], 64 NY2d 725, 726 [1984]). In contrast,

"[i]ncidental control over the results produced," such as

supplying form contracts, requiring periodic reports and

attendance at meetings, giving instruction on what to wear or how

to make a presentation, "without further indicia of control over

the means employed to achieve the results[,] will not constitute

substantial evidence of an employer-employee relationship"

(Matter of Ted is Back Corp. [Roberts], 64 NY2d at 726; see

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

[Commissioner of Labor], 15 NY3d at 437-438; Matter of Hertz

Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004]).

Here, the evidence presented at the hearing demonstrated

that Agewell set the driver's schedules, determining the order in

which multiple clients would be picked up, and required the
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drivers to sign in and out. Drivers typically used Agewell's

vehicles with the company logo on them and its credit card when

putting gas into the vehicles, but were reimbursed if they used

their own vehicles. Claimant further testified that shirts and

jackets with the company logo were provided and that he typically

wore them, along with a name tag. Agewell also fielded

complaints from clients and provided feedback to the drivers on

their performance. Drivers were allowed to pursue their own

business interests and many did, including claimant. 

Notwithstanding the existence of evidence in the record to

support a contrary conclusion, the foregoing constitutes

substantial evidence to support the Board's conclusion that the

control retained by Agewell was more than incidental and

sufficient to establish that claimant was its employee and not an

independent contractor (see Matter of Khan [Mirage Limousine

Serv., Inc.–Commissioner of Labor, 66 AD3d 1098, 1099-1100

[2009], lv denied 13 NY3d 717 [2010]; Matter of Automotive Serv.

Sys., Inc. [Commissioner of Labor], 56 AD3d 854, 855 [2008];

Matter of Kelly [Frank Gallo, Inc.–Commissioner of Labor], 28

AD3d 1044, 1044-1045 [2006], lv dismissed 7 NY3d 844 [2006];

Matter of CDK Delivery Serv. [Hartnett], 151 AD2d 932, 932-933

[1989]; see also Matter of Charles A. Field Delivery Serv.

[Roberts], 66 NY2d 516, 517-521 [1985]).

Agewell's remaining arguments are either lacking in merit

or unpreserved for our review.

Lahtinen, J.P., Garry, Lynch and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court