                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: May 21, 2015                        519861
________________________________

In the Matter of the Claim of
   RENEA E. AUSSICKER,
                    Respondent.

PARK RIDE FLY USA,                            MEMORANDUM AND ORDER
                      Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   March 31, 2015

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

                               __________


      Tabner, Ryan & Keniry, LLP, Albany (Brian M. Quinn of
counsel), for appellant.

      Cynthia Feathers, Glens Falls, for Renea E. Aussicker,
respondent.

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

                               __________


      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed December 10, 2013, which ruled, among other
things, that Park Ride Fly USA was liable for unemployment
insurance contributions based on remuneration paid to claimant
and others similarly situated.

      Park Ride Fly USA (hereinafter PRF) is a third-party
booking agency servicing customers seeking to make reservations
at various off-site airport parking facilities. It maintains a
website through which the majority of its customers make their
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reservations. PRF engaged individuals, such as claimant, to act
as customer service representatives to provide telephone support
to customers needing assistance with booking online reservations.
Claimant provided such services for PRF for approximately one
year, after which she applied for unemployment insurance
benefits. Claimant was subsequently awarded benefits and PRF was
assessed unemployment insurance contributions based on
remuneration paid to claimant and others similarly situated. The
Unemployment Insurance Appeal Board agreed, upon concluding that
an employment relationship existed between PRF and claimant, as
well as other similarly situated customer service
representatives. PRF now appeals.

      We affirm. Initially, "[i]t is well settled that the
existence of an employment relationship is a factual issue for
the Board to decide and its determination will be upheld if
supported by substantial evidence" (Matter of Speilberger
[Commissioner of Labor], 122 AD3d 998, 999 [2014]; see Matter of
Empire State Towing & Recovery Assn., Inc. [Commissioner of
Labor], 15 NY3d 433, 437 [2010]). "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 Joyce [Coface N. Am.
Ins. Co.–Commissioner of Labor], 116 AD3d 1132, 1134 [2014]
[internal quotation marks and citations omitted]).

      Here, claimant was offered the position after an informal
interview with PRF's Director of Online Services who agreed to
pay her the requested hourly rate of $11. Although claimant and
other representatives worked from home and were required to
provide their own Internet service, PRF furnished them with
special phones that utilized the voice over Internet protocol
necessary to assist customers. In addition, PRF provided
training on use of the phones as well as the services that it
provided to its customers. Although PRF did not establish set
hours and allowed the representatives to hold other jobs, it set
up a schedule online that the representatives completed by
selecting the hours that they wished to work, and PRF emailed
them their final schedules. Claimant and the other
representatives submitted invoices for hours worked that PRF
would, in turn, check against their work schedules. Notably, PRF
                              -3-                  519861

was able to monitor the representatives while they were assisting
customers to verify that they were working and to ensure quality
service. Moreover, PRF handled customer complaints and took
corrective action where necessary. In view of the foregoing,
although there is evidence that would support a contrary
conclusion, substantial evidence supports the Board's finding
that PRF exercised sufficient control over the manner in which
claimant and the other customer service representatives performed
their work such as to be deemed their employer (see Matter of
Yoga Vida NYC, Inc. [Commissioner of Labor], 119 AD3d 1314, 1315
[2014], lv granted 24 NY3d 909 [2014]; Matter of Cohen [Just
Energy Mktg. Corp.–Commissioner of Labor], 117 AD3d 1112, 1113
[2014], lv dismissed 24 NY3d 928 [2014]). Therefore, we find no
reason to disturb the Board's decisions.

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



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
