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Harold v. Leonard's Transp.

Supreme Court, Appellate Division, Third Department, New York.
Nov 19, 2015
133 A.D.3d 1069 (N.Y. App. Div. 2015)

Opinion

11-19-2015

In the Matter of the Claim of David L. HAROLD, Respondent.Leonard's Transportation, Appellant.Commissioner of Labor, Respondent.

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.


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.

Before: McCARTHY, J.P., ROSE, DEVINE and CLARK, JJ.

Opinion

ROSE, J.

Appeals (1) from two decisions of the Unemployment Insurance Appeal Board, filed February 24, 2014, which, among other things, ruled that Leonard'sTransportation 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.

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.

123 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 A.D.3d 1166, 1167, 3 N.Y.S.3d 195 [2015] [internal quotation marks and citations omitted]; 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] ). 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 A.D.3d 1461, 1462, 7 N.Y.S.3d 676 [2015]; see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 N.Y.3d 433, 437, 912 N.Y.S.2d 551, 938 N.E.2d 984 [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 U.S.C. §§ 13906, 14102[a] [3]; 49 C.F.R. 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 A.D.3d 1112, 1113, 985 N.Y.S.2d 190 [2014], lv. dismissed 24 N.Y.3d 928, 993 N.Y.S.2d 539, 17 N.E.3d 1136 [2014]; see 49 C.F.R. 376.12[c][4]; Matter of Choto v. Consolidated Lbr. Transp., Inc., 82 A.D.3d 1369, 1370, 918 N.Y.S.2d 268 [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 A.D.3d at 1113, 985 N.Y.S.2d 190; Matter of Jimenez [C & I Assoc., Inc.-Commissioner of Labor], 74 A.D.3d 1587, 1589, 902 N.Y.S.2d 722 [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 A.D.3d at 1462, 7 N.Y.S.3d 676; Matter of Davis [RTC Transp.-Roberts], 111 A.D.2d 1030, 1031, 490 N.Y.S.2d 621 [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 A.D.3d 1225, 1226, 4 N.Y.S.3d 402 [2015], lv. dismissed 25 N.Y.3d 1192, 16 N.Y.S.3d 51, 37 N.E.3d 109 [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 A.D.2d 914, 914, 568 N.Y.S.2d 201 [1991]; Matter of Blount [Whalen's Moving & Stor. Co.- Hartnett], 154 A.D.2d 849, 849, 546 N.Y.S.2d 498 [1989] ), and to contact Leonard if he anticipated any delay of delivery (see Matter of Wright [Central Transp., Inc.-Commissioner of Labor], 58 A.D.3d 988, 989–990, 871 N.Y.S.2d 459 [2009]; Matter of McKenna [Can Am Rapid Courier–Sweeney], 233 A.D.2d 704, 704, 649 N.Y.S.2d 953 [1996], lv. denied 89 N.Y.2d 810, 656 N.Y.S.2d 738, 678 N.E.2d 1354 [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 A.D.3d at 1226, 4 N.Y.S.3d 402). 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 A.D.2d 676, 677, 649 N.Y.S.2d 955 [1996]; Matter of Davis [RTC Transp.-Roberts], 111 A.D.2d at 1030, 490 N.Y.S.2d 621). Claimant was also instructed to be courteous and to 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 A.D.3d 1044, 1044, 814 N.Y.S.2d 340 [2006], lv. dismissed 7 N.Y.3d 844, 823 N.Y.S.2d 772, 857 N.E.2d 67 [2006]; Matter of Webley [Graphic Transmissions–Roberts], 133 A.D.2d 885, 886, 520 N.Y.S.2d 78 [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 A.D.3d at 1226, 4 N.Y.S.3d 402; Matter of Wright [Central Transp., Inc.-Commissioner of Labor], 58 A.D.3d at 988, 871 N.Y.S.2d 459). 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 A.D.3d 1244, 1245, 8 N.Y.S.3d 609 [2015] ), or have been examined and found to be lacking in merit.

ORDERED that the decisions are affirmed, without costs.


Summaries of

Harold v. Leonard's Transp.

Supreme Court, Appellate Division, Third Department, New York.
Nov 19, 2015
133 A.D.3d 1069 (N.Y. App. Div. 2015)
Case details for

Harold v. Leonard's Transp.

Case Details

Full title:In the Matter of the Claim of David L. HAROLD, Respondent.Leonard's…

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

Date published: Nov 19, 2015

Citations

133 A.D.3d 1069 (N.Y. App. Div. 2015)
19 N.Y.S.3d 149
2015 N.Y. Slip Op. 8485

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