In re Scott

• Citation: 133 A.D.3d 935,20 N.Y.S.3d 178
• Parties: In the Matter of the Claim of Dwayne E. SCOTT, Respondent. CR England Inc., Appellant. Commissioner of Labor, Respondent. (And Three Other Related Claims.).
• Decision Date: 05 November 2015
• Court: New York Supreme Court Appellate Division

133 A.D.3d 935

20 N.Y.S.3d 178

In the Matter of the Claim of Dwayne E. SCOTT, Respondent. CR England Inc., Appellant. Commissioner of Labor, Respondent. (And Three Other Related Claims.).

Supreme Court, Appellate Division, Third Department, New York.

Nov. 5, 2015.

Strongin Rothman & Abrams, LLP, New York City (Barry S. Rothman of counsel), for appellant.

Murphy, Burns, Barber & Murphy, LLP, Albany (Catherine A. Barber of counsel), for Dwayne E. Scott, respondent.

Eric T. Schneiderman, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.

Before: LAHTINEN, J.P., GARRY, LYNCH and DEVINE, JJ.

GARRY, J.

Appeals from eight decisions of the Unemployment Insurance Appeal Board, filed November 26, 2013, which ruled, among other things, that CR England Inc. was liable for additional unemployment insurance contributions on remuneration paid to claimants and others similarly situated.

CR England Inc. is a for-hire authorized motor carrier under permit from the U.S. Department of Transportation, with headquarters in Utah. Claimants, who are New York residents, performed services for CR as long-haul tractor-trailer truck drivers transporting freight throughout the continental United States, pursuant to an agreement providing that they were independent contractors (hereinafter the agreement). After claimants applied for unemployment insurance benefits, the Department of Labor (hereinafter DOL) determined that claimants and others similarly situated were employees rather than independent contractors and that CR was liable for additional tax contributions. The claims were subsequently consolidated. Following a hearing requested by CR, an Administrative Law Judge determined, among other things, that claimants were employees and that CR's requests regarding claimants Thomas R. Stevens and Michael P. Murtagh were untimely. Upon appeal, the Unemployment Insurance Appeal Board sustained the decisions. CR appeals.

Initially, CR contends that claimants did not engage in covered employment within New York as defined in Labor Law § 511(3)(c). This claim is raised for the first time upon appeal. We reject CR's contention that it is jurisdictional and may therefore be asserted at any time. The Labor Law charges DOL and the Board with the duty of determining whether a claimant engaged in covered employment (see Labor Law §§ 511, 597, 621[3] ). In carrying out this statutory obligation, a determination that a claimant was not so engaged results in a finding that the claimant is ineligible for unemployment insurance benefits, but does not affect the agency's jurisdiction over the claim (see e.g. Matter of Allen [Commissioner of Labor], 100 N.Y.2d 282, 287–288, 763 N.Y.S.2d 237, 794 N.E.2d 18 [2003] ). As this contention was thus required to be preserved, it is not properly before this Court and will not be considered (see Matter of Horvath [Residence Inn/Buffalo Lodging Assoc., L.L.C.-Commissioner of Labor], 32 A.D.3d 1089, 1089, 820 N.Y.S.2d 817 [2006] ; Matter of Altman [Commissioner of Labor], 3 A.D.3d 658, 659, 770 N.Y.S.2d 467 [2004] ).

The Board did not err in determining that the hearing requests relative to Stevens and Murtagh were untimely. "Pursuant to Labor Law § 620(2), an employer has 30 days to request a hearing after the mailing or personal delivery of a notice of determination from which it claims to be aggrieved" (Matter of Preyer [Dische–Commissioner of Labor], 121 A.D.3d 1216, 1216, 994 N.Y.S.2d 449 [2014], appeal dismissed 24 N.Y.3d 1204, 4 N.Y.S.3d 152, 27 N.E.3d 856 [2015], lv. denied 25 N.Y.3d 906, 2015 WL 3620597 [2015] [citation omitted]; accord Matter of Tartaglia [Aegis Capital Corp.-Commissioner of Labor], 128 A.D.3d 1304, 1305, 9 N.Y.S.3d 746 [2015] ; see 12 NYCRR 461.2 ). As to Stevens, DOL issued a notice of determination dated January 17, 2008 finding that he was an employee and not an independent contractor. This determination further directed CR to submit amended quarterly reports and to pay contributions on Stevens' earnings and those of all other similarly employed persons dating back to "at least the first quarter of 2005." On January 25, 2008, DOL issued a separate determination awarding him benefits. CR submitted a request for a hearing dated February 25, 2008. This request referenced only the determination of January 25, on the stated basis that Stevens had been discharged for misconduct; neither the initial determination nor the issue of classification was mentioned. CR thereafter requested a hearing on the issue of Stevens' classification in May 2008. Contrary to CR's contention, we find that it was aggrieved by the requirements of the initial determination, notwithstanding the fact that benefits were subsequently awarded, and it was required to make a timely request for a hearing (see Labor Law § 620[2] ).

CR's February 25, 2008 request for a hearing was filed within the statutory period applicable to the January 17, 2008 determination, as it is deemed to have received that determination no later than five business days following the date on the determination (see 12 NYCRR 461.2 ). Nonetheless, the inferences to be drawn from the language of the February 25, 2008 request posed factual issues for the Board to resolve. On this record, the Board was not bound to conclude that the limited request made by CR encompassed either the January 17, 2008 determination or the issue of Stevens' classification, and we thus defer to the Board's determination of this issue (compare Matter of Chism [Community Blood Council of Greater N.Y.-Levine], 42 A.D.2d 914, 915, 347 N.Y.S.2d 362 [1973] ).

DOL issued a notice of determination relative to Murtagh on April 18, 2008, which classified him as an employee, but later determined that he was ineligible for benefits on another ground. CR was aggrieved by the classification determination, which imposed the same requirements upon CR as the classification determination pertaining to Stevens. Nevertheless, CR failed to request a hearing until July 2, 2008. Although CR argues that its delays in both instances should be excused, as it reasonably believed that it was not aggrieved for unemployment insurance purposes if no benefits were awarded, "the statutory time period in which to request a hearing is to be strictly construed, and the statute contains no provision permitting an extension of time in which an employer can request a hearing" (Matter of Rago [Resource One, Inc.-Commissioner of Labor], 22 A.D.3d 1002, 1002, 802 N.Y.S.2d 564 [2005] ; accord Matter of Hickman [Maximum Litigation Support Servs., LLC–Commissioner of Labor], 111 A.D.3d 1000, 1000, 974 N.Y.S.2d 303 [2013] ; Matter of Agarwal [Bilingual Seit & Preschool, Inc.-Commissioner of Labor], 108 A.D.3d 807, 808, 968 N.Y.S.2d 257 [2013] ). Accordingly, the Board's timeliness determinations will not be disturbed.

As to the classification of claimants as employees rather than independent contractors, "[w]hether an employer-employee relationship exists is a question of fact, to be decided on the basis of evidence from which it can be found that the alleged employer exercises control over the results produced ... or the means used to achieve the results" (Matter of Charles A. Field Delivery Serv. [Roberts], 66 N.Y.2d 516, 521, 498 N.Y.S.2d 111, 488 N.E.2d 1223 [1985] [internal quotation marks and citations omitted]; see Matter of Short [Ranger Transp.-Sweeney], 233 A.D.2d 676, 677, 649 N.Y.S.2d 955 [1996] ). The record reveals that CR requires all newly hired drivers, upon completing an initial training period, to choose whether they will provide services as independent contractors...