                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 2, 2015                      519690
________________________________

In the Matter of MASTROIANNI
   BROS., INC.,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   April 22, 2015

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

                             __________


      McNamee, Lochner, Titus & Williams, PC, Albany (Scott C.
Paton of counsel), for appellant.

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

                             __________


Lahtinen, J.P.

      Appeal from that part of a decision of the Unemployment
Insurance Appeal Board, filed December 2, 2013, which assessed
Mastroianni Bros., Inc. for additional unemployment insurance
contributions.

      Mastroianni Bros., Inc. sells baked food products to
supermarkets, independent grocery stores and restaurants. The
products are delivered from the bakery to the various stores by
individuals referred to as drivers/distributors (hereinafter
distributors), whose status as employees or independent
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contractors is in dispute.1 A field report in 2003 concluded
that such individuals were independent contractors. However, a
more extensive audit in 2006 reached a contrary result finding
that they were employees. The Department of Labor assessed
Mastroianni for additional unemployment insurance contributions
for the period from 2003 to 2005. Mastroianni objected and,
following a hearing, an Administrative Law Judge held in
September 2011 that the distributors were independent
contractors. Respondent appealed and, in December 2013, the
Unemployment Insurance Appeal Board determined that the
distributors were employees. Mastroianni appeals.

   "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], quoting Matter of Concourse Ophthalmology Assoc.
[Roberts], 60 NY2d 734, 736 [1983]). "'[C]ontrol over the
results produced or the means used to achieve those results are
pertinent considerations, with the latter being more important'"
(Matter of Armison [Gannett Co., Inc.-Commissioner of Labor], 122
AD3d 1101, 1102 [2014], lv dismissed 24 NY3d 1209 [2015], quoting
Matter of Automotive Serv. Sys., Inc. [Commissioner of Labor], 56
AD3d 854, 855 [2008]). "'Incidental control over the results
produced – without further evidence of control over the means
employed to achieve the results – will not constitute substantial
evidence of an employer-employee relationship'" (Matter of Empire
State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15
NY3d at 437, quoting Matter of Hertz Corp. [Commissioner of
Labor], 2 NY3d 733, 735 [2004]).

      Here, a contrary decision could have been made on this
record and the fact that the issue is close is reflected by the


     1
        The status of some casual laborers at Mastroianni was
also determined, but that is not an issue on appeal.
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varying determinations at different levels of agency involvement
and review. Nonetheless, since substantial evidence supports the
Board's decision and our review thereof is limited, we are
constrained to affirm. The Board's factual findings included:
each of the six distributors were assigned to exclusive
geographic areas; routes were not purchased; new distributors
were interviewed unless the person was already known by
Mastroianni; Mastroianni kept a file on each distributor with
personal data, copies of the drivers' licenses and insurance
information; Mastroianni set prices at the chain stores that
comprised the majority of the distribution and this impacted the
compensation that the distributors could earn; the distributors
were paid every two weeks based on net sales; the product was
available for pick up during a set timeframe; trucks used by some
distributors during the relevant time had a Mastroianni logo;
Mastroianni would occasionally check the quality of product
displays in stores and reserved the right to discipline the
distributors for unsatisfactory work; the distributors were
required to remove and dispose of stale products so as to
maintain Mastroianni's reputation; and Mastorianni controlled the
majority of the billing and collection process. Although proof
of factors supportive of independent contractor status was also
presented, the record contains substantial evidence supporting
the Board's determination (see e.g. Matter of Armison [Gannett
Co., Inc.-Commissioner of Labor], 122 AD3d at 1102-1103; Matter
of Lombard [Commissioner of Labor], 52 AD3d 981, 982-983 [2008]
Matter of Joubert [Clinton Nursery Prods.-Commissioner of Labor],
255 AD2d 719, 720 [1998]; Matter of Santoro [Hartnett], 173 AD2d
1042, 1042-1043 [1991]; Matter of Oakes [Stroehman Bakeries-
Roberts], 137 AD2d 927, 928 [1988]).

      Reversal is not required based on the 2003 field report
that concluded that the distributors were independent contractors
and apparently was purged by the Department as part of routine
record removal before this matter was concluded. An
administrative board is "required to either follow the relevant
precedent established by its prior decision or provide an
explanation for its failure to do so" (Matter of Ramadhan v
Morgans Hotel Group Mgt., LLC, 91 AD3d 1141, 1142 [2012]). The
2003 field report was less comprehensive than the 2006 audit, and
an initial investigative report by an agency is not binding on
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subsequent agency review. This is not a case of conflicting
decisions on the same matter by the Board (see Matter of Viau
[New York State Off. of Ct. Admin.-Commissioner of Labor], 125
AD3d 1223, 1227 [2015]; Matter of Ramadhan v Morgans Hotel Group
Mgt., LLC, 91 AD3d at 1142). With respect to the failure to keep
the 2003 report, the better practice would have been to preserve
it; however, it was apparently purged consistent with the
Department's document retention policy, and there is no
indication of prejudice under the circumstances (cf. Weiss v
Bellevue Maternity Hosp., 121 AD3d 1480, 1481-1482 [2014]).

     Garry, Lynch and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
