                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: November 19, 2015                     520314
________________________________

In the Matter of the Claim of
   DICK WILDER,
                    Respondent.

RB HUMPHREYS INC.,                            MEMORANDUM AND ORDER
                      Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:    October 15, 2015

Before:    Garry, J.P., Egan Jr., Rose and Clark, JJ.

                               __________


      Hancock & Estabrook, Syracuse (Robert Whitaker Jr. of
counsel), for appellant.

     Michelle I. Rosien, Philmont, for Dick Wilder, respondent.

                               __________


Rose, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed March 24, 2014, which ruled, among other
things, that RB Humphreys Inc. was liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.

      Claimant was a tractor trailer driver for RB Humphreys
Inc., a trucking company engaged in the business of transporting,
primarily, food products. After claimant's relationship with RB
Humphreys ended and he applied for unemployment insurance
benefits, the Unemployment Insurance Appeal Board, among other
things, assessed RB Humphreys for additional unemployment
                              -2-                520314

insurance contributions on the ground that claimant and others
similarly situated were its employees rather than independent
contractors. This appeal by RB Humphreys ensued.

      "It is well settled that [w]hether an employment
relationship exists within the meaning of the unemployment
insurance law is a question of fact, no one factor is
determinative and the determination of the . . . [B]oard, if
supported by substantial evidence on the record as a whole, is
beyond further judicial review even though there is evidence in
the record that would have supported a contrary decision" (Matter
of Empire State Towing & Recovery Assn., Inc. [Commissioner of
Labor], 15 NY3d 433, 437 [2010] [internal quotation marks and
citations omitted]). The indicia of control retained by RB
Humphreys herein are similar to those identified in establishing
an employer-employee relationship in Matter of Youngman (RB
Humphreys, Inc.-Commissioner of Labor) (126 AD3d 1225 [2015], lv
dismissed 25 NY3d 1192 [2015]). Here, claimant entered a lease
purchase agreement for use of a truck owned by RB Humphreys. RB
Humphreys retained exclusive use of the vehicle while under lease
and did not relinquish the title until the full purchase price
was paid. RB Humphreys set the pay rate for claimant, who,
absent negligence on his part, was paid regardless of whether the
customer ultimately paid RB Humphreys. Although claimant could
refuse assignments, testimony established that his lease purchase
agreement would be terminated if an assignment was not accepted
within a certain period of time. Furthermore, pursuant to the
service contract with RB Humphreys, claimant was subject to a
one-year noncompete clause following the cessation of their
relationship. Contrary to RB Humphreys' contention, we find that
the Board's factual findings are supported by the testimony and
documentary evidence in the record. Moreover, notwithstanding
evidence that could support a different conclusion, substantial
evidence supports the determination that am employer-employee
relationship exists between RB Humphreys and claimant (see Matter
of Rivera [State Line Delivery Serv.-Roberts], 69 NY2d 679, 682
[1986], cert denied 481 US 1049 [1987]; Matter of Youngman [RB
Humphreys Inc.-Commissioner of Labor], 126 AD3d at 1226).
Although, as a motor carrier, RB Humphreys is subject to various
statutory and regulatory requirements, this does not compel a
contrary result (see Matter of Short [Ranger Transp.-Sweeney],
                              -3-                  520314

233 AD2d 676, 678 [1996]). RB Humphreys' remaining contentions
have been reviewed and found to be without merit.

     Garry, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
