Opinion
October 1, 1992
Appeal from the Unemployment Insurance Appeal Board.
R J Robichaud Drywall Corporation (hereinafter R J) contests the determination by the Unemployment Insurance Appeal Board that claimant, a drywall finisher, was its employee rather than an independent contractor. Whether an employer-employee relationship exists is a question of fact for the Board to resolve (see, Matter of Cameryn Entertainment Co. [Hartnett], 174 A.D.2d 859). The evidence in the record reveals that claimant did not hold himself out as an independent contractor and he neither advertised nor had business cards. Claimant did not bill R J for his services and, when he was hired, R J determined, without negotiation, how much claimant would be paid. Although claimant had some flexibility as to his specific hours, he was instructed when and where he was to work and given a specific time in which to complete his job. Although claimant used his own tools, R J supplied all of the materials for the jobs, as well as the necessary scaffolding, ladders and planks. Also significant in the determination that an employer-employee relationship existed is the fact that R J provided claimant with workers' compensation insurance coverage (see, Matter of Promotion Mail Assocs. [Catherwood], 33 A.D.2d 872; Matter of Dance Caravan Prods. [Catherwood], 30 A.D.2d 595). In fact, when claimant was injured on the job, R J did not object to the payment on his claim for such benefits. R J also covered claimant under its liability policy without charge and gave him and his family health insurance. Although evidence exists which could support a contrary conclusion, the record as a whole contains substantial evidence to support the Board's determination and it must, therefore, be upheld (see, Matter of Field Delivery Serv. [Roberts], 66 N.Y.2d 516, 521; Matter of Krugman [Zito Assocs. — Hartnett], 151 A.D.2d 907, 908; Matter of Wells [Utica Observer-Dispatch Utica Daily Press — Roberts], 87 A.D.2d 960).
Weiss, P.J., Mikoll, Yesawich Jr., Crew III and Harvey, JJ., concur. Ordered that the decision is affirmed, without costs.