                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 16, 2015                    519608
________________________________

In the Matter of the Claim of
   CHRISTOPHER L. WATSON,
                    Respondent.

PARTSFLEET INC.,                            MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   February 24, 2015

Before:   Peters, P.J., McCarthy, Rose and Devine, JJ.

                             __________


      Littler Mendelson, PC, New Haven, Connecticut (Stephen
Rosenberg of counsel), for appellant.

      Dan M. Walters, Fairpoint, for Christopher L. Watson,
respondent.

      Eric T. Schneiderman, Attorney General, New York City (Dawn
A. Foshee of counsel), for Commissioner of Labor, respondent.

                             __________


      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed November 4, 2013, which ruled that claimant
was entitled to receive unemployment insurance benefits and that
Partsfleet Inc. was liable for additional unemployment insurance
contributions on remuneration paid to claimant and others
similarly situated.

      Partsfleet Inc. is in the business of providing logistics
and dispatch services for the delivery of auto parts and related
products to its customers. It entered into a written agreement
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with Subcontracting Concepts, Inc. (hereinafter SCI) to broker
transportation services for its business. From November 2009
until May 2010, claimant worked as a delivery driver servicing
Partsfleet's customers. After claimant ceased providing delivery
services, he filed a claim for unemployment insurance benefits.
Following extended proceedings, the Unemployment Insurance Appeal
Board ruled that an employment relationship existed between
claimant and Partsfleet entitling claimant to receive benefits.
In addition, the Board assessed Partsfleet for additional
unemployment insurance contributions based on remuneration paid
to claimant and others similarly situated. Partsfleet appeals.

      Initially, it is well settled that the existence of an
employment relationship is a factual question for the Board to
resolve and its decision will be upheld if supported by
substantial evidence (see Matter of Concourse Ophthalmology
Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Spielberger
[Commissioner of Labor], 122 AD3d 998, 999 [2014]). 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
(see Matter of Empire State Towing & Recovery Assn., Inc.
[Commissioner of Labor], 15 NY3d 433, 437 [2010]; Matter of
Armison [Gannett Co., Inc.–Commissioner of Labor], 122 AD3d 1101,
1102 [2014], lv dismissed 24 NY3d 1209 [2015]).

      Here, although Partsfleet had a contract with SCI and it
was SCI that issued claimant's paychecks, SCI had no involvement
in the services that claimant performed. Claimant was retained
as a delivery driver following a short interview with a
Partsfleet representative and a check of his motor vehicle
record. Partsfleet trained him on the operation of a scanner
used to schedule and track customer deliveries, and briefed him
on the requirements of the customers. The delivery schedule was
set by Partsfleet based upon customer requests, and it monitored
deliveries via the scanner. Claimant was paid based on the
particular delivery route that he had completed at a rate that
Partsfleet set with its customer, and claimant was paid if he
completed the route regardless of whether the customer paid
Partsfleet. Claimant worked out of a warehouse that belonged to
one of Partfleet's customers and that is where he left his
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completed route sheets, which were then collected by a Partsfleet
representative. Any problems with deliveries were generally
handled by a Partsfleet representative. Although claimant could
work for other companies and find replacements if he could not
work a particular route, the replacements had to be approved by
Partsfleet. The foregoing establishes that Partsfleet maintained
control over important aspects of claimant's work as was
necessary to insure that its customers' needs were satisfied.
Accordingly, substantial evidence supports the Board's finding
that an employment relationship existed between claimant and
Partsfleet thereby entitling him to receive benefits (see Matter
of Lombard [SOH Distr. Co., Inc.–Commissioner of Labor], 52 AD3d
981, 982 [2008]; Matter of Ganapathy [Zurich Depository Corp.–
Sweeney], 243 AD2d 981, 981 [1997]).

      We reach a different conclusion, however, with respect to
the Board's assessment of additional contributions based on
remuneration paid to individuals who were similarly situated to
claimant. The scope of the hearing was specifically limited to
the issue of whether there was an employment relationship between
claimant and Partsfleet. Significantly, no evidence was adduced
pertaining to other individuals who provided delivery services.1
In view of this, we find that substantial evidence is lacking
with respect to the assessment of additional contributions based
on the remuneration paid to these similarly situated individuals,
and the Board's decision in this regard must be reversed (see
Matter of Viau [New York State Off. of Ct. Admin.–Commissioner of
Labor], 125 AD3d 1223, 1227 [2015]).

        Peters, P.J., McCarthy, Rose and Devine, JJ., concur.




    1
        Notably, there is some indication that the arrangement
that Partsfleet had with the delivery drivers changed subsequent
to May 2010 when claimant ceased making deliveries.
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      ORDERED that the decisions are modified, without costs, by
reversing so much thereof as found that all persons similarly
situated to claimant are employees of Partsfleet Inc., and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
