In re Baez
| Decision Date | 27 October 2016 |
| Parties | In the Matter of the Claim of Bertrand BAEZ, Respondent. PD 10276, Inc., Doing Business as Jan–Pro Cleaning Systems, Appellant. Commissioner of Labor, Respondent. |
| Court | New York Supreme Court — Appellate Division |
143 A.D.3d 1190
41 N.Y.S.3d 146
2016 N.Y. Slip Op. 07061
In the Matter of the Claim of Bertrand BAEZ, Respondent.
PD 10276, Inc., Doing Business as Jan–Pro Cleaning Systems, Appellant.
Commissioner of Labor, Respondent.
Supreme Court, Appellate Division, Third Department, New York.
Oct. 27, 2016.
Jackson Lewis, PC, White Plains (Penny Ann Lieberman of counsel), for appellant.
Pamela B. Bleiwas, Ithaca, for Bertrand Baez, respondent.
Eric T. Schneiderman, Attorney General, New York City (Steven Koton of counsel), for Commissioner of Labor, respondent.
Before: GARRY, J.P., EGAN JR., LYNCH, ROSE and AARONS, JJ.
AARONS, J.
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed May 28, 2014, which, among other things, ruled that PD 10276, Inc. was liable for unemployment insurance contributions on renumeration paid to claimant and others similarly situated.
Claimant operated a janitorial cleaning service based upon a franchise agreement entered into with PD 10276, Inc., doing business as Jan–Pro Cleaning Systems (hereinafter Jan–Pro). In 2009, claimant ceased his operations and applied for unemployment insurance benefits. At the same time, the Department of Labor conducted an unemployment insurance tax audit of Jan–Pro for the period January 2006 through
December 2007. The Department issued initial determinations finding that claimant and others similarly situated were employees of Jan–Pro and that Jan–Pro owed additional unemployment insurance contributions in the amount of $30,166.93. Jan–Pro objected and, after a hearing, an Administrative Law Judge reversed the Department's determinations and sustained Jan–Pro's objections to the additional contributions due. On administrative appeal, the Unemployment Insurance Appeal Board reversed the determinations of the Administrative Law Judge and found, among other things, that claimant was an employee of Jan–Pro. These appeals by Jan–Pro ensued.
Whether an employment relationship exists within the meaning of the unemployment insurance law is a factual question for the Board to determine and no one factor is determinative (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734, 736, 469 N.Y.S.2d 78, 456 N.E.2d 1201 [1983] ; Matter of Cobrin [Telecom Consulting Group NE Corp.-Commissioner of Labor], 91 A.D.3d 992, 993, 936 N.Y.S.2d 361 [2012] ). “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 McAlevey [Agewell Physical Therapy & Wellness, P.C.-Commissioner of Labor], 126 A.D.3d 1219, 1220, 5 N.Y.S.3d 609 [2015] [internal quotation marks and citation omitted]; see Matter of Kristensen [Law Offs. of David C. Birdoff–Commissioner of Labor], 138 A.D.3d 1318, 1319, 30 N.Y.S.3d 380 [2016] ). When the Board's decision is supported by substantial evidence, it is beyond judicial review even if evidence supporting a contrary result exists in the record (see Matter of Isaacs [Speedy Media Assoc., LLC–Commissioner of Labor], 125 A.D.3d 1077, 1078, 3 N.Y.S.3d 776 [2015] ; Matter of Odyssey Transp., LLC [Commissioner of Labor], 62 A.D.3d 1175, 1176, 881 N.Y.S.2d 504 [2009] ).
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