                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 19, 2015                   518862
________________________________

In the Matter of the Claim of
   CAMILLE HUNTER,
                    Respondent.

GANNETT COMPANY, INC., Doing
   Business as DEMOCRAT                     MEMORANDUM AND ORDER
   AND CHRONICLE,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   December 2, 2014

Before:   Lahtinen, J.P., Garry, Lynch and Clark, JJ.

                             __________


      Bond, Schoeneck & King, PLLC, Syracuse (Daniel J. Pautz of
counsel) and The Zinser Law Firm, PC, Nashville, Tennessee (L.
Michael Zinser admitted pro hac vice), for appellant.

      James W. Cooper, Warrensburg, for Camille Hunter,
respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Koton of counsel), for Commissioner of Labor, respondent.

      Satterlee Stephens Burke & Burke, LLP, New York City (Mark
A. Fowler), for New York News Publishers Association, amicus
curiae.

                             __________



      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed July 25, 2013, which ruled, among other
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things, that Gannett Company, Inc. is liable for additional
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.

      Claimant contracted with Gannett Company, Inc. to deliver
newspapers to residential customers. After the Commissioner of
Labor deemed claimant an employee, Gannett objected and,
following a hearing, the Administrative Law Judge disagreed and
concluded that claimant was an independent contractor. On appeal
by the Commissioner of Labor, the Unemployment Insurance Appeal
Board reversed that determination and found claimant and all
motor-route carriers similarly situated to be employees. Gannett
now appeals, and we affirm.

      The essence of Gannett's argument is that the Board's
finding of an employer-employee relationship is not supported by
substantial evidence. We disagree. "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 John Lack Assoc., LLC
[Commissioner of Labor], 112 AD3d 1042, 1043 [2013] [citation
omitted]; see Matter of Concourse Ophthalmology Assoc. [Roberts],
60 NY2d 734, 736 [1983]). "While no single factor is
determinative, control over the results produced or the means
used to achieve those results are pertinent considerations, with
the latter being more important" (Matter of Joyce [Coface N. Am.
Ins. Co.–Commissioner of Labor], 116 AD3d 1132, 1133 [2014]
[internal quotation marks and citation omitted]; see Matter of
Spielberger [Commissioner of Labor], 122 AD3d 998, 999 [2014]).

      Recently, in Matter of Armison [Gannett Co., Inc.–
Commissioner of Labor] (122 AD3d 1101 [2014]), this Court upheld
a finding of an employer-employee relationship between Gannett
and certain newspaper delivery persons. Here, as we did in
Armison, we find that the requisite level of control was present
to support the Board's finding of an employer-employee
relationship. Claimant was required to make deliveries within
set time frames and according to other conditions. Claimant was
also required to be a licensed driver with a registered and
insured vehicle, and was obligated to provide Gannett with a copy
of her driver's license and proof of liability insurance.
                              -3-                  518862

Additionally, under the terms of the distribution agreement, all
substitutes were required to be licensed and insured. Claimant
was provided a route set by Gannett and, if claimant was not
available to deliver her route, she was responsible for finding a
substitute. In the event that deliveries were not made by
claimant, Gannett would use an employee to make the delivery and
charge claimant a fee. Further, Gannett controlled other aspects
of claimant's work, including prohibiting placing foreign
materials on or in the publications. Claimant was also provided
access to accident insurance from Gannett's policy. In light of
the foregoing, and despite the existence of other evidence in the
record suggestive of an independent contractor relationship –
including the distribution agreement expressly designating
claimant as an independent contractor – we find that substantial
evidence supports the Board's determination that claimant was an
employee (see Matter of Armison [Gannett Co., Inc.–Commissioner
of Labor], 122 AD3d at 1101; Matter of Lewis [Absolute Distrib.,
Inc.–Commissioner of Labor], 121 AD3d 1488 [2014]; Matter of
Kelly [Frank Gallo, Inc.–Commissioner of Labor], 28 AD3d 1044,
1045 [2006], lv dismissed 7 NY3d 844 [2006]). Gannett's
remaining arguments have been considered and found to be lacking
in merit.

     Lahtinen, J.P., Garry, Lynch and Clark, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
