                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 19, 2015                    520224
________________________________

In the Matter of the Claim of
   DAVID L. HAROLD,
                    Respondent.

LEONARD'S TRANSPORTATION,                    MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:    October 19, 2015

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

                              __________


      Bond, Schoeneck & King, PLLC, Rochester (James C. Holahan
of counsel), for appellant.

      Michelle I. Rosien, Philmont, for David L. Harold,
respondent.

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

                              __________


Rose, J.

      Appeals (1) from two decisions of the Unemployment
Insurance Appeal Board, filed February 24, 2014, which, among
other things, ruled that Leonard's Transportation was liable for
additional unemployment insurance contributions on remuneration
paid to claimant and others similarly situated, and (2) from two
decisions of said Board, filed April 30, 2014, which denied an
application by Leonard's Transportation for reopening and
reconsideration.
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      From April 2006 to October 2009, claimant, a truck driver,
hauled freight for Leonard's Transportation (hereinafter
Leonard), a trucking company that provides freight transportation
services to its customers. To accomplish this task, claimant,
who worked under two independent contractor agreements with
Leonard, utilized a truck that he leased from Leonard's related
company. After claimant's employment with Leonard ended, he
applied for unemployment insurance benefits, and the Department
of Labor determined that he was an employee entitled to
unemployment benefits and, as such, that Leonard was liable for
additional contributions on remuneration paid to claimant and
others similarly employed as drivers. Following a hearing, an
Administrative Law Judge sustained that determination, and the
Unemployment Insurance Appeal Board adopted the Administrative
Law Judge's findings of fact and opinion and subsequently denied
Leonard's application for reconsideration. Leonard appeals.

      We affirm. "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
Hunter [Gannett Co.–Commissioner of Labor], 125 AD3d 1166, 1167
[2015] [internal quotation marks and citations omitted]; see
Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734,
736 [1983]). While no single factor is determinative, "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"
(Matter of Watson [Partsfleet Inc.—Commissioner of Labor], 127
AD3d 1461, 1462 [2015]; see Matter of Empire State Towing &
Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437
[2010]). Here, the record contains substantial evidence that
Leonard exercised the requisite control over claimant's work to
establish his status as an employee. While some indicia of
control by Leonard was mandated by federal regulations (see 49
USC §§ 13906, 14102 [a] [3]; 49 CFR 40.1 et seq., 376.12 [b], [c]
[1], [4]; [d]–[f], [h]–[k]; 382.101 et seq., 387.9, 396.1 et
seq.), which, standing alone, "is not sufficient to establish an
employer-employee relationship" (Matter of Cohen [Just Energy
Mktg. Corp.—Commissioner of Labor], 117 AD3d 1112, 1113 [2014],
lv dismissed 24 NY3d 928 [2014]; see 49 CFR 376.12 [c] [4];
Matter of Choto v Consolidated Lbr. Transp., Inc., 82 AD3d 1369,
                              -3-                520224

1370 [2011]), the extent to which regulations governed the
parties' contractual relationship can still be considered as part
of the overall calculus of control exercised over claimant (see
Matter of Cohen [Just Energy Mktg. Corp.—Commissioner of Labor],
117 AD3d at 1113; Matter of Jimenez [C & I Assoc., Inc.—
Commissioner of Labor], 74 AD3d 1587, 1589 [2010]). Under the
lease, claimant was not permitted to sublease or to allow any
other party to use or operate the trucks without consent and was
required under the parties' agreements to use the trucks that he
leased from Leonard's related company (see Matter of Watson
[Partsfleet Inc.—Commissioner of Labor], 127 AD3d at 1462; Matter
of Davis [RTC Transp.—Roberts], 111 AD2d 1030, 1031 [1985]).
Claimant was also bound by a one-year noncompetition restriction
prohibiting him from soliciting, transporting or handling
business of any of Leonard's customers during the term of their
agreements or for one year thereafter (see Matter of Youngman [RB
Humphreys Inc.—Commissioner of Labor], 126 AD3d 1225, 1226
[2015], lv dismissed 25 NY3d 1192 [2015]).

      Further, claimant was required to comply with Leonard's
safety and procedures manual, which covered, among other things,
safety concerns, delivery procedures and the scheduling of
vacations. Although claimant had no set schedule, he was
expected to keep Leonard informed daily of his status while
hauling freight (see Matter of Duffy [North Am. Van Lines—
Hartnett], 172 AD2d 914, 914 [1991]; Matter of Blount [Whalen's
Moving & Stor. Co.—Hartnett], 154 AD2d 849, 849 [1989]), and to
contact Leonard if he anticipated any delay of delivery (see
Matter of Wright [Central Transp., Inc.—Commissioner of Labor],
58 AD3d 988, 989-990 [2009]; Matter of McKenna [Can Am Rapid
Courier—Sweeney], 233 AD2d 704, 704 [1996], lv denied 89 NY2d 810
[1997]). Claimant also did not haul freight for any other
company or customers, and claimant did not deal directly with
customers because Leonard handled the orders, billing, customer
service and complaints (see Matter of Youngman [RB Humphreys
Inc.—Commissioner of Labor], 126 AD3d at 1226). In addition to
claimant receiving freight assignments directly from Leonard,
Leonard also established the rates for pickup and delivery
services (see Matter of Short [Ranger Transp.—Sweeney], 233 AD2d
676, 677 [1996]; Matter of Davis [RTC Transp.—Roberts], 111 AD2d
at 1030). Claimant was also instructed to be courteous and to
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represent the company in a professional manner at all times and
to never argue with customers (see Matter of Kelly [Frank Gallo,
Inc.—Commissioner of Labor], 28 AD3d 1044, 1044 [2006], lv
dismissed 7 NY3d 844 [2006]; Matter of Webley [Graphic
Transmissions—Roberts], 133 AD2d 885, 886 [1987]). Claimant was
directed, prior to receiving payment from Leonard, to submit
weekly paperwork, which included trip recaps, signed bills of
lading, lumper receipts, toll tickets, fuel receipts and logs,
and he received payment from Leonard directly regardless of
whether the customer paid Leonard (see Matter of Youngman [RB
Humphreys Inc.—Commissioner of Labor], 126 AD3d at 1226; Matter
of Wright [Central Transp., Inc.—Commissioner of Labor], 58 AD3d
at 988). Thus, notwithstanding evidence that could support a
different result, the foregoing facts provide substantial
evidence to support the Board's finding of an employer-employee
relationship existed under the circumstances of this case.
Leonard's remaining arguments are either being raised for the
first time in its reply brief and, therefore, not properly before
us (see Matter of Garcia v Prack, 128 AD3d 1244, 1245 [2015]), or
have been examined and found to be lacking in merit.

     McCarthy, J.P., Devine and Clark, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
