                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 30, 2014                   518490
________________________________

In the Matter of the Claim of
   ALBERT J. LEWIS,
                    Respondent.

ABSOLUTE DISTRIBUTION, INC.,                MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   September 16, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Egan Jr. and Clark, JJ.

                             __________

      Ufberg & Associates, LLP, Scranton, Pennsylvania (Glenn E.
Plosa, of The Zinser Law Firm, PC, Nashville, Tennessee, pro hac
vice), for appellant.

     Francis J. Smith, Albany, for Albert J. Lewis, 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 May 2, 2013, which denied Absolute
Distribution, Inc.'s application to reopen a prior decision.

      By decisions dated December 14, 2011, the Unemployment
Insurance Appeal Board ruled, among other things, that Absolute
Distribution Inc., an out-of-town-newspaper distributor,
exercised sufficient control over the delivery services of
claimant and those similarly situated to establish an employer-
employee relationship. Within 30 days of the initial decisions,
Absolute Distribution made applications to reopen and reconsider
                              -2-                518490

those decisions. By decisions filed May 2, 2013, the Board
denied the applications and this appeal ensued.

      Initially, we note that Absolute Distribution challenges
only the merits of the initial decisions, which are properly
before this Court given the timely application for reopening and
reconsideration (see Matter of Lambrecht [Commissioner of Labor],
102 AD3d 1050, 1051 [2013]). Turning to the merits, substantial
evidence supports the Board's initial decision finding an
employer-employee relationship. The record establishes that
Absolute Distribution set and assigned the distribution outlets
where the carriers were to deliver the papers. The carriers
could not refuse to deliver to those customers nor could they
exchange customers with other carriers. Absolute Distribution
required the papers to be delivered by a specified time or the
carrier risked being terminated. Furthermore, the rate of
remuneration was set by Absolute Distribution. Although certain
guidelines were adopted by the Department of Labor to assist in
determining whether an employer-employee relationship exists with
regard to newspaper carriers, no single factor is determinative.
Rather, where an employer exercises control over either the
results produced or the means used to achieve the results, an
employer-employee relationship exists (see Matter of Ted is Back
Corp. [Roberts], 64 NY2d 725, 726 [1984]; Matter of Mid-Hudson
Publ., Kingston Daily Freeman Div. [Roberts], 119 AD2d 959, 960
[1986], lv denied 68 NY2d 609 [1986]). Because there is evidence
in the record to support the Board's determination that Absolute
Distribution exercise a sufficient indicia of control over the
carriers work, that decision is beyond judicial review, "even
though the evidence would have supported a contrary conclusion"
(Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d
516, 521 [1985]).

      Lahtinen, J.P., Stein, McCarthy, Egan Jr. and Clark, JJ.,
concur.
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ORDERED that the decisions are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
