                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   520746
________________________________

In the Matter of the Claim of
   BERTRAND BAEZ,
                    Respondent.

PD 10276, INC., Doing Business
   as JAN-PRO CLEANING                      MEMORANDUM AND ORDER
   SYSTEMS,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   September 8, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.

                             __________


      Jackson Lewis, PC, White Plains (Penny Ann Lieberman of
counsel), for appellant.

     Pamela B. Bleiwas, Ithaca, for Bertrand Baez, respondent.

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

                             __________


Aarons, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed May 28, 2014, which, among other things,
ruled that PD 10276, Inc. was liable for unemployment insurance
contributions on renumeration paid to claimant and others
similarly situated.
                              -2-                520746

      Claimant operated a janitorial cleaning service based upon
a franchise agreement entered into with PD 10276, Inc., doing
business as Jan-Pro Cleaning Systems (hereinafter Jan-Pro). In
2009, claimant ceased his operations and applied for unemployment
insurance benefits. At the same time, the Department of Labor
conducted an unemployment insurance tax audit of Jan-Pro for the
period January 2006 through December 2007. The Department issued
initial determinations finding that claimant and others similarly
situated were employees of Jan-Pro and that Jan-Pro owed
additional unemployment insurance contributions in the amount of
$30,166.93. Jan-Pro objected and, after a hearing, an
Administrative Law Judge reversed the Department's determinations
and sustained Jan-Pro's objections to the additional
contributions due. On administrative appeal, the Unemployment
Insurance Appeal Board reversed the determinations of the
Administrative Law Judge and found, among other things, that
claimant was an employee of Jan-Pro. These appeals by Jan-Pro
ensued.

      Whether an employment relationship exists within the
meaning of the unemployment insurance law is a factual question
for the Board to determine and no one factor is determinative
(see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d
734, 736 [1983]; Matter of Corbin [Telecom Consulting Group NE
Corp.–Commissioner of Labor], 91 AD3d 992, 993 [2012]). "An
employment relationship will be found when the evidence shows
that the employer exercises control over the results produced or
the means used to achieve the results, with control over the
means [being] the more important factor" (Matter of McAlevey
[Agewell Physical Therapy & Wellness, P.C.–Commissioner of
Labor], 126 AD3d 1219, 1220 [2015] [internal quotation marks and
citation omitted]; see Matter of Kristensen [Law Offs. of David
C. Birdoff–Commissioner of Labor], 138 AD3d 1318, 1319 [2016]).
When the Board's decision is supported by substantial evidence,
it is beyond judicial review even if evidence supporting a
contrary result exists in the record (see Matter of Isaacs
[Speedy Media Assoc., LLC–Commissioner of Labor], 125 AD3d 1077,
1078 [2015]; Matter of Odyssey Transp., LLC [Commissioner of
Labor], 62 AD3d 1175, 1176 [2009]).
                              -3-                520746

      We conclude that substantial evidence exists to support the
Board's finding of an employer-employee relationship. The record
evidence demonstrates that Jan-Pro assigned claimant a specific
geographic territory and required new franchisees to undergo
initial mandatory training, which was paid for by Jan-Pro.
Franchisees were also required to operate the business in
accordance with the procedures established at the training and
the standards set forth by Jan-Pro (see Matter of Gluck [DaVinci
3D Corp.–Commissioner of Labor], 132 AD3d 1045, 1046 [2015];
Matter of Joyce [Coface N. Am. Ins. Co.–Commissioner of Labor],
116 AD3d 1132, 1134 [2014]). To that end, franchisees had to use
Jan-Pro-sanctioned equipment, supplies, products and business
forms (see Matter of Armbuster [Summit Health, Inc.–Commissioner
of Labor], 138 AD3d 1367, 1368 [2016], lv dismissed 28 NY3d 946
[2016]). Jan-Pro helped resolve any complaints between a
customer and a franchisee and retained the right to discontinue a
franchisee's services to any client any time (see Matter of
McAlevey [Agewell Physical Therapy & Wellness, P.C.–Commissioner
of Labor], 126 AD3d at 1220). Jan-Pro provided franchisees with
a starter set of business cards, which contained Jan-Pro's logo,
and claimant's business card listed Jan-Pro's name, logo and
address (see Matter of Interlandi [Cremosa Foods Co., LLC–
Commissioner of Labor], 70 AD3d 1150, 1151 [2010]). Although
claimant had the option of designing his own business card, any
such designs required Jan-Pro's approval. Furthermore, according
to the franchise agreement, if claimant developed any new
concepts or techniques that improved Jan-Pro's business, they
became Jan-Pro's property (see Matter of Redwoodturral [Everest
Prod. Corp.–Commissioner of Labor], 133 AD3d 1064, 1065 [2015]).

      The franchise agreement also contained a non-compete
provision barring claimant from operating for one year in any
area of Jan-Pro's affiliates or franchises (see Matter of
Garbowski [Dynamex Operations E., Inc.–Commissioner of Labor],
136 AD3d 1079, 1080 [2016]). Moreover, the franchise agreement
gave Jan-Pro the sole right to invoice and collect from
claimant's customer accounts, maintain revenue records with
respect to such accounts and accept payment from claimant's
customers. While the franchise agreement designated claimant as
an independent contractor, such terms are not dispositive of
claimant's status (see Matter of Francis [West Sanitation
                              -4-                  520746

Servs.–Sweeney], 246 AD2d 751, 752 [1998], lvs dismissed 92 NY2d
886 [1998], 93 NY2d 833 [1999]; cf. Matter of Dwyer [Nassau
Regional Off-Track Corp.–Commissioner of Labor], 138 AD3d 1369,
1370 [2016]).

      Based on the foregoing, even though the record contains
evidence that could support a contrary result, because the
Board's decision is supported by substantial evidence, we decline
to disturb it (see Matter of Odyssey Transp., LLC [Commissioner
of Labor], 62 AD3d at 1176; Matter of Pepsi Cola Buffalo Bottling
Corp. [Hartnett], 144 AD2d 220, 222 [1988]). Finally, we find no
error in the Board's determination that Jan-Pro is liable for
contributions on renumeration paid to all others similarly
situated to claimant (see Matter of Ritch [Island Tutoring Ctr.,
Inc.–Commissioner of Labor], 139 AD3d 1151, 1153 [2016]).

     Garry, J.P., Egan Jr., Lynch and Rose, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
