                         State of New York
                  Supreme Court, Appellate Division
                     Third Judicial Department
Decided and Entered:   December 3, 2015               519380
                                                      519381
                                                      519382

________________________________

In the Matter of the Claim of
   RICARDO K. VOISIN,
                    Respondent.

DYNAMEX OPERATIONS EAST, INC.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(Claim No. 1.)
________________________________

In the Matter of the Claim of
   RAMDEO S. RAMSARAN,
                    Respondent.

DYNAMEX OPERATIONS EAST, INC.,             MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(Claim No. 2.)
________________________________

In the Matter of the Claim of
   GEORGE P. KAMBOURIS,
                    Respondent.

DYNAMEX OPERATIONS EAST, INC.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(Claim No. 3.)
________________________________
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                                                  519381
                                                  519382

Calendar Date:   October 14, 2015

Before:   Lahtinen, J.P., McCarthy, Lynch and Devine, JJ.

                            __________


      Jasinski PC, Newark, New Jersey (Erin L. Henderson of
counsel), for appellant.

      Michelle I. Rosien, Philmont, for Ricardo K. Voisin and
others, respondents.

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

                            __________


McCarthy, J.

      Appeals from six decisions of the Unemployment Insurance
Appeal Board, filed November 26, 2013, November 27, 2013 and
December 6, 2013, which ruled, among other things, that Dynamex
Operations East, Inc. is liable for unemployment insurance
contributions on remuneration paid to claimants and others
similarly situated.

      Dynamex Operations East, Inc. is a logistics company that
operates, among other things, a same-day pickup and delivery
service specializing in the health care field. Claimants were
couriers engaged by Dynamex for its same-day delivery business.
The Unemployment Insurance Appeal Board determined that an
employer-employee relationship existed between claimants and
Dynamex, that claimants were entitled to unemployment insurance
benefits and that Dynamex was liable for unemployment insurance
contributions for remuneration paid to claimants and others
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                                                 519382

similarly situated.   Dynamex now appeals.1

      "Whether an employer-employee relationship exists is a
factual question to be resolved by the Board and we will not
disturb its determination when it is supported by substantial
evidence in the record" (Matter of Jennings [American Delivery
Solution, Inc.–Commissioner of Labor], 125 AD3d 1152, 1152 [2015]
[internal quotation marks and citations omitted]; see Matter of
LaValley [West Firm, PLLC–Commissioner of Labor], 120 AD3d 1498,
1499 [2014]). "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 Automotive Serv. Sys., Inc. [Commissioner
of Labor], 56 AD3d 854, 855 [2008] [citations omitted]; accord
Matter of Joyce [Coface N. Am. Ins. Co.–Commissioner of Labor],
116 AD3d 1132, 1133 [2014]).

      Here, the record contains evidence that claimants were
required to wear uniforms identifying themselves as being
contracted through Dynamex. Claimants were also issued Dynamex
identification cards. Further, claimants were bound by a one-
year noncompetition restriction following their termination with
Dynamex. Claimants would advise Dynamex when they were available
to work and Dynamex would then assign pickups and deliveries to
them within their general geographic location. Claimants were
required to complete their assignments the same day and provide
Dynamex with proof of delivery. Dynamex handled customer
complaints and would bill its customers and pay claimants weekly,
based upon commissions for the services performed, even if the
customer did not pay Dynamex. Contrary to the employer's


    1
        The Board reopened the November 26, 2013 decisions
regarding claimant Ricardo K. Viosin to correct an error and
issued new decisions on December 4, 2013. Although Dynamex has
not appealed from the subsequent decisions, they are reviewable
as they are substantially the same as the November 26, 2013
decisions (see Matter of Fair [Commissioner of Labor], 27 AD3d
841, 842 n [2006]).
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                                                   519382

contention, there is substantial evidence in the record to
support the Board's finding that claimants were employees of
Dynamex and that Dynamex was liable for unemployment insurance
contributions based upon remuneration paid to them and others
similarly situated (see Matter of Youngman [RB Humphreys
Inc.–Commissioner of Labor], 126 AD3d 1225, 1226-1227 [2015], lv
dismissed 25 NY3d 1192 [2015]; Matter of Kelly [Frank Gallo,
Inc.–Commissioner of Labor], 28 AD3d 1044, 1044-1045 [2006], lv
dismissed 7 NY3d 844 [2006]; Matter of Cabellero [Reynolds
Transp.–Hudacs], 184 AD2d 984, 984 [1992]). Accordingly, the
decisions will not be disturbed.

     Lahtinen, J.P., Lynch and Devine, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
