Xyz Two Way Radio Serv., Inc. v. Comm'r Labor (In re Tsai)

• Decision Date: 15 November 2018
• Docket Number: 525689
• Parties: In the MATTER OF the Claim of JUNG YEN TSAI, Respondent. XYZ Two Way Radio Service, Inc., Appellant. v. Commissioner of Labor, Respondent.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1252
88 N.Y.S.3d 599

In the MATTER OF the Claim of JUNG YEN TSAI, Respondent.

XYZ Two Way Radio Service, Inc., Appellant.
v.
Commissioner of Labor, Respondent.

525689

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

Calendar Date: October 12, 2018
Decided and Entered: November 15, 2018

88 N.Y.S.3d 600

Arkin Solbakken LLP, New York City (Deana Davidian of counsel), for appellant.

Teresa C. Mulliken, Harpersfield, for Jung Yen Tsai, respondent.

Barbara D. Underwood, Attorney General, New York City (Mary Hughes of counsel), for Commissioner of Labor, respondent.

Before: Garry, P.J., Devine, Clark, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeals from three decisions of the Unemployment Insurance Appeal Board, filed December 30, 2016, which ruled, among other things, that XYZ Two Way Radio Service, Inc. was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

XYZ Two Way Radio Service, Inc. operates a black car limousine service that prearranges transportation for its clients around the New York City area. XYZ is owned by shareholders who purchase electronic tablets from XYZ to communicate with XYZ's system and work as drivers or rent out their tablets to third-party drivers. Claimant, a non-shareholder, leased a tablet from one of the shareholder-owners and performed the services of an XYZ driver from January through June 2015. Claimant left XYZ and went to work for another car service and thereafter applied for unemployment insurance benefits in

88 N.Y.S.3d 601

November 2015. The Department of Labor determined that claimant was an employee of XYZ and was entitled to credit for remuneration paid to him by XYZ during the period he was in its employ, and held that XYZ was liable for additional contributions for remuneration paid to claimant and others similarly situated. The Unemployment Insurance Appeal Board agreed and upheld these findings in three decisions. XYZ now appeals.

We affirm. "[W]hether an employee-employer relationship exists is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record" ( Matter of Raupov [Empire City Labs., Inc. -Commissioner of Labor] , 155 A.D.3d 1284, 1285, 64 N.Y.S.3d 765 [2017] [internal quotation marks and citations omitted] ). "[S]ubstantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably — probatively and logically" ( Matter of Yoga Vida NYC, Inc. [Commissioner of Labor] , 28 N.Y.3d 1013, 1015, 41 N.Y.S.3d 456, 64 N.E.3d 276 [2016] [internal quotation marks and citation omitted] ). Notably, "no single factor is determinative [and] the relevant inquiry is whether the purported employer exercised control over the results produced or the means used to achieve those results, with control over the latter being the more important factor" ( Matter of Link [Cantor & Pecorella, Inc.-Commissioner of Labor] , 153 A.D.3d 1061, 1062, 59 N.Y.S.3d 857 [2017] [internal quotation marks and citations omitted], lv dismissed 31 N.Y.3d 946, 73 N.Y.S.3d 123, 96 N.E.3d 219 [2018] ; see Matter of Yoga Vida NYC, Inc. [Commissioner of Labor] , 28 N.Y.3d at 1015, 41 N.Y.S.3d 456, 64 N.E.3d 276 ).

The record establishes that XYZ dispatchers arranged rides for its clients by assigning client requests to the next available XYZ driver who had signed in and queued in line in one of the covered geographic zones set by XYZ. After accepting an assignment, the driver picked up the client, who provided an XYZ voucher for the driver to complete and the client to sign, the driver transported the client to his or her desired destination, reported the assignment completed, signed back into the system and returned to the queue for the next assignment, and later turned in the voucher to XYZ; if the voucher was lost, XYZ contacted the client to recreate it. While a driver could promptly refuse an assignment, once accepted the driver could not use a substitute and was obligated to complete the trip. XYZ set the rates charged to clients based...