                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 19, 2017                   522340
________________________________

In the Matter of the Claim of
   MICHAEL K. BROWN,
                    Respondent.

EXPRESS DELIVERY LLC,                       MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   November 15, 2016

Before:   Garry, J.P., Egan Jr., Devine, Clark and Mulvey, JJ.

                             __________


     Peter Fidopiastis, Queensbury, for appellant.

      Teresa C. Mulliken, Harpersfield, for Michael K. Brown,
respondent.

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

                             __________


Mulvey, J.

      Appeals from five decisions of the Unemployment Insurance
Appeal Board, filed March 27, 2015, which ruled, among other
things, that claimant was entitled to receive unemployment
insurance benefits.

      Claimant worked as a courier for Express Delivery LLC and
was required to use his own vehicle to complete his duties.
After his vehicle was damaged beyond repair in a non-work-related
accident, he was unable to continue his employment and he applied
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for unemployment insurance benefits. The Department of Labor
issued an initial determination on July 15, 2014, finding that an
employer-employee relationship existed between claimant and
Express Delivery, and that Express Delivery was liable for
unemployment insurance contributions based on remuneration paid
to claimant and others similarly situated. The Department issued
another determination on July 30, 2014 finding claimant eligible
for unemployment insurance benefits. Following a combined
hearing on both determinations, the Unemployment Insurance Appeal
Board ultimately found that Express Delivery had failed to
request a hearing regarding the July 15, 2014 finding of an
employer-employee relationship within the time limit allotted
pursuant to Labor Law § 620. The Board also found that claimant
had good cause to leave his employment and awarded him
unemployment insurance benefits. These appeals ensued.

      An employer dissatisfied with the initial determination of
a claim for unemployment insurance benefits has 30 days after the
mailing or personal delivery of notice of the determination to
request a hearing (see Labor Law § 620 [2]; Matter of White [F2
Solutions, LLC–Commissioner of Labor], 138 AD3d 1377, 1378
[2016]). The Department mailed its initial determination finding
an employment relationship between claimant and Express Delivery
on July 15, 2014. The record reflects that Express Delivery did
not request a hearing regarding this determination until
September 3, 2014. It contends that it did not file a timely
request for a hearing because the Department's subsequent July
30, 2014 determination was confusing and could have been read as
denying benefits to claimant, which, according to Express
Delivery, would have rendered the issue of conducting a hearing
on the July 15, 2014 determination moot. We disagree.

      The issue addressed in the July 15, 2014 determination –
whether an employment relationship existed and whether Express
Delivery is therefore liable for unemployment insurance
contributions on remuneration paid to claimant and others
similarly situated – is an entirely separate issue, and whether
claimant is eligible for benefits based upon his particular
circumstances is not determinative as to whether Express Delivery
is liable for contributions (see generally Matter of Alemic
[Herald Publ. Co.–Commissioner of Labor], 140 AD3d 1565, 1566
                              -3-                522340

[2016]; Matter of Walker [Parents Info. Group for Exceptional
Children–Commissioner of Labor], 271 AD2d 769, 770 [2000]).
Accordingly, the July 30, 2014 subsequent determination by the
Department finding an entitlement to benefits does not render the
July 15, 2014 determination moot. If Express Delivery had any
concerns about the interpretation of the contradictory language
in the July 30, 2014 determination, it could have sought
clarification or appealed that determination, which steps it did
not take. Further, and contrary to Express Delivery's
contention, there is no language in the July 30, 2014
determination indicating that it was intended to supercede the
prior determination. In view of this disposition, we need not
address the challenge to the assessment against Express Delivery
for additional unemployment insurance contributions.

      As to the Board's decision regarding claimant's eligibility
to receive benefits and whether he voluntarily left his job
without good cause, we reach a different conclusion. Eligibility
for unemployment insurance benefits is a factual issue for the
Board to resolve, and this Court will not disturb the Board's
determination if supported by substantial evidence (see Matter of
Baez [Tuck It Away–Commissioner of Labor], 126 AD3d 1211, 1211
[2015]; Matter of Faison [Commissioner of Labor], 120 AD3d 1480,
1481 [2014]). Here, in finding that claimant was unable to
continue his employment due to circumstances beyond his control,
the Board credited claimant's testimony that he was not ticketed
for the accident, that he was unable to obtain a loan to purchase
another vehicle and that he was willing to work for Express
Delivery in a different position that did not require the use of
a personal vehicle.

      The Board determined that the employment agreement, wherein
claimant agreed to provide his own vehicle, was not controlling.
On the record before us, we disagree with the Board's conclusion
that claimant left his employment with good cause. Although
claimant's testimony constituted substantial evidence regarding
the circumstances surrounding the loss of the use of the vehicle,
it was error to find that this constituted substantial evidence
that his separation from his employment was for good cause. We
note that claimant admitted that he shared responsibility for the
accident with the other driver and that he had entered into a
                              -4-                522340

written employment agreement whereby he agreed to provide his own
vehicle and keep it in good operational condition. Further, and
importantly, he also agreed that if the vehicle became disabled,
he would replace it expeditiously. It is well established that
"once the terms of employment have been agreed upon, such terms
cannot thereafter be invoked as valid grounds for quitting"
(Matter of Orlik [Commissioner of Labor], 257 AD2d 837, 837
[1999]; see Matter of Dougal [Commissioner of Labor], 87 AD3d
781, 782 [2011]). Inasmuch as claimant was aware of the terms of
his employment and accepted same, we conclude that he could not
later invoke his inability to meet the requirements of his
employment, regardless of the circumstances or fault surrounding
the loss of the use of his vehicle, as good cause for leaving his
employment (see e.g. Matter of Moore [New York Press & Graphics,
Inc.–Commissioner of Labor], 32 AD3d 1088, 1088 [2006]).
Claimant's inability to obtain a replacement vehicle, cited by
the dissent as proof of circumstances beyond claimant's control,
was a risk that claimant accepted when he agreed to the terms of
his employment. Accordingly, the Board's decision finding that
claimant had good cause to leave his employment is not supported
by substantial evidence.

     Egan Jr. and Devine, JJ., concur.


Clark, J. (concurring in part and dissenting in part).

      We agree with the majority that the July 15, 2014
determination of the Unemployment Insurance Appeal Board was not
rendered moot by its July 30, 2014 determination; however, our
positions diverge on the issue of whether substantial evidence
supported the Board's determination that claimant voluntarily
left his employment with good cause. Whether a claimant has good
cause to voluntarily leave his or her employment is a factual
determination for the Board to resolve (see Matter of Alemic
[Herald Publ. Co.–Commissioner of Labor], 140 AD3d 1565, 1566
[2016]), and the assessment of witness credibility and the
evaluation of evidence and inferences to be drawn therefrom fall
within the exclusive province of the Board (see Matter of Di
Maria v Ross, 52 NY2d 771, 772 [1980]; Matter of Roberson
[Commissioner of Labor], 142 AD3d 1259, 1261 [2016]; Matter of
                              -5-                522340

Malone [Commissioner of Labor], 117 AD3d 1306, 1306 [2014]). If
substantial evidence supports the Board's determination that a
claimant had good cause to voluntarily separate from employment,
we must uphold that determination (see Matter of Malone
[Commissioner of Labor], 117 AD3d at 1306; Matter of Waheed
[Commissioner of Labor], 110 AD3d 1428, 1429 [2013]).

      Here, both the Administrative Law Judge and the Board
squarely addressed the underlying factual issue and resolved it
in claimant's favor. Applying the appropriate legal standard, as
above, we therefore should not disturb the Board's determination.
The Board specifically found that the total loss of claimant's
motor vehicle following an accident outside of work hours
constituted good cause for his voluntary separation from his
employment as a courier. The evidence credited by the Board
established that claimant was not issued a citation following the
accident and that no fault was attributed to him for the cause of
that accident. In addition, the Board credited claimant's
testimony that he was unable to secure alternate means of
transportation. In particular, claimant testified that the
amount of damage to his vehicle was greater than the value of the
vehicle and that, although he received some gap insurance
coverage, he still owed $1,000 on his auto loan. Claimant
further stated that he did not have the money for a down payment,
that he was informed by a credit union that he could not obtain a
new auto loan until the existing loan was paid in full and that
he had determined after making several inquiries to rental car
companies that using a rental car to perform his courier duties
would be too costly. The Board also credited and found
significant claimant's testimony that, prior to separating from
his employment, he applied for and was denied a delivery position
using a company vehicle. While the Board recognized that
claimant entered into an agreement in which he agreed to use his
own personal vehicle in connection with his courier services, and
did so for roughly a year and a half, the Board expressly found
that claimant was no longer in a position to provide his own
transportation due to circumstances that were beyond his control
(compare Matter of Moore [New York Press & Graphics, Inc.–
Commissioner of Labor], 32 AD3d 1088, 1088 [2006] [the claimant
left employment "for personal and noncompelling reasons amounting
essentially to his dissatisfaction with a term of his
                              -6-                  522340

employment"]; Matter of Chevres [Commissioner of Labor], 286 AD2d
799, 799 [2001] [the claimant left employment for "personal and
noncompelling reasons"]). In our view, substantial evidence
supported the Board's determination that claimant had good cause
to voluntarily leave his employment and, as such, we would not
disturb it. Accordingly, we would affirm.

     Garry, J.P., concurs.


      ORDERED that the decisions are modified, without costs, by
reversing so much thereof as ruled that claimant was eligible to
receive unemployment insurance benefits; matter remitted to the
Unemployment Insurance Appeal Board for further proceedings not
inconsistent with this Court's decision; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
