                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 28, 2016                    521446
________________________________

In the Matter of the Claim of
   WILLIAM J. DeVAUL,
                    Respondent.

JOSEPH A. GUARDI, Doing                     MEMORANDUM AND ORDER
   Business as JOSEPH A.
   GUARDI USED AUTO,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   March 25, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


      Pope, Schrader & Pope, LLP, Binghamton (Kurt Schrader of
counsel), for appellant.

      Samuel D. Castellino, Big Flats, for William J. DeVaul,
respondent.

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

                             __________


Garry, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed October 28, 2014, which ruled that Joseph A.
Guardi was liable for unemployment insurance contributions on
remuneration paid to claimant and others similarly situated.
                              -2-                521446

      Joseph A. Guardi is the owner and operator of Joseph A.
Guardi Used Auto, a used automobile sales business engaged in the
business of purchasing and repairing used automobiles for resale.
To accomplish this task, in 2010 Guardi retained the services of
claimant, an automobile mechanic, to repair the vehicles that
would ultimately be sold by Used Auto. Following the end of
claimant's employment with Guardi in 2012, claimant filed an
application for unemployment insurance benefits. The
Unemployment Insurance Appeal Board subsequently ruled that
claimant was Guardi's employee and that Guardi was liable for
additional unemployment insurance contributions on remuneration
paid to claimant and other similarly situated individuals
employed as automobile mechanics. Guardi now appeals.

      "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 Voisin [Dynamex Operations E.,
Inc.—Commissioner of Labor], 134 AD3d 1186, 1187 [2015] [internal
quotation marks and citations omitted]; see Matter of Empire
State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15
NY3d 433, 437 [2010]). "An employer-employee relationship exists
when the evidence shows that the employer exercises control over
the results produced or the means used to achieve the results,"
with the latter more important (Matter of Empire State Towing &
Recovery Assn. [Commissioner of Labor], 15 NY3d at 437 [citation
omitted]; see Matter of Pickton [Priority Assist Inc.—
Commissioner of Labor], 127 AD3d 1484, 1486 [2015]).

      Here, the record evidence reflects that, although Guardi
did not advertise for claimant's services, claimant filled out
paperwork that he characterized as an application for employment
prior to working for Guardi. Upon being hired, Guardi offered
and established claimant's rate of pay at $10 an hour. Claimant
testified that after pricing the cost of repairs for a used
vehicle and discussing those repairs with Guardi, Guardi would
instruct him whether to make the repairs and, at times, would
also make repair suggestions to claimant. Guardi provided
claimant with a garage to perform the repairs that included
certain equipment, such as a vehicle lift, tire-changing machine
and a compressor (see Matter of Lessman [Snowlift
                              -3-                521446

LLC—Commissioner of Labor], 54 AD3d 1078, 1079 [2008], lv denied
13 NY3d 702 [2009]; Matter of Murello [Adams Darcy Art—Roberts],
108 AD2d 974, 975 [1985]). Guardi also disposed of old motor oil
and used tires and maintained the equipment located in the
garage. While claimant owned his own tools, he kept those tools
at the garage, and he did not maintain his own auto-repair
business or repair vehicles for any other employer.

      Aside from repairing vehicles, claimant also assisted
Guardi with customer service and, on occasion, sold a used
vehicle, for which he would receive a commission of $50. In
addition to issuing claimant a weekly paycheck, claimant was
expected to work the same hours as other employees at Used Auto
and report for work on time each day. Claimant was required to
contact Guardi if he was sick or unable to report to work on a
given day, was required to obtain permission to take time off
from work and record the start and end of his shifts and meals on
a timeclock (see Matter of McAlevey [Agewell Physical Therapy &
Wellness, P.C.,–Commissioner of Labor], 126 AD3d 1219, 1220
[2015]; Matter of DeRose [Winston Retail Solutions, LLC–
Commissioner of Labor], 119 AD3d 1174, 1175 [2014]). Inasmuch as
substantial evidence supports the Board's decision that Guardi
exercised sufficient control over claimant's work to be
considered his employer, we decline to disturb it (see Matter of
Ingle [Mechanical Secretary, Inc.—Commissioner of Labor], 129
AD3d 1424, 1425 [2015]; Matter of Jaeger [Vendor Control Serv.,
Inc.—Commissioner of Labor], 106 AD3d 1360, 1361 [2013]; Matter
of Ramirez [Gottlieb Jewelry—Commissioner of Labor], 256 AD2d
705, 706 [1998]).

     McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.
                        -4-                  521446

ORDERED that the decisions are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
