                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 19, 2015                   518266
________________________________

In the Matter of the Claim of
   RICHARD G. JENNINGS,
                    Respondent.

AMERICAN DELIVERY SOLUTION,                 MEMORANDUM AND ORDER
   INC., Doing Business as
   PERFECT DELIVERY SERVICES,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   December 2, 2014

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

                             __________


      Segal McCambridge Singer & Mahoney, New York City (Annette
G. Hasapidis of counsel), for appellant.

      Francis J. Smith, Albany, for Richard G. Jennings,
respondent.

                             __________


      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed May 13, 2013, which ruled that American
Delivery Solution, Inc. was liable for unemployment insurance
contributions based on remuneration paid to claimant and others
similarly situated.

      Claimant worked as a delivery person for American Delivery
Solution, Inc. (hereinafter ADS) – a business that transports
lost luggage from airports to luggage owners. After his
employment ended, claimant applied for unemployment insurance
benefits and the Department of Labor determined that claimant was
                               -2-                518266

an employee of ADS and, therefore, ADS was liable for
unemployment insurance contributions based on remuneration paid
to claimant and others similarly situated. ADS objected on the
ground that claimant was an independent contractor and, following
a hearing, the Administrative Law Judge sustained the initial
determination and the Unemployment Insurance Appeal Board
affirmed. ADS now appeals.

      We reverse. Whether an employee-employer 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 McCollum [Fire Is.
Union Free Sch. Dist.–Commissioner of Labor], 118 AD3d 1203, 1203
[2014]; see Matter of Concourse Ophthalmology Assoc. [Roberts],
60 NY2d 734, 736 [1983]). "'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 Matter of Armison
[Gannett Co.–Commissioner of Labor], 122 AD3d 1101, 1102 [2014],
quoting Matter of Automotive Serv. Sys., Inc. [Commissioner of
Labor], 56 AD3d 854, 855 [2008]). Upon reviewing the record
here, we find that the requisite control is lacking.

      Claimant paid all of the expenses associated with his
delivery work, including the lease of his vehicle, fuel, tolls,
insurance, maintenance and his cell phone. For his services,
claimant negotiated his own rate of pay and was paid a portion of
the commission paid to ADS (see Matter of Holleran [Jez Enters.,
Inc.–Commissioner of Labor], 98 AD3d 757, 759 [2012])].1 No
training was provided by ADS, nor did it impose any conditions on
the way that claimant performed his work. Claimant spoke to the
customer directly to determine delivery times and was ultimately
responsible for lost or damaged luggage. Moreover, under the
parties' agreement, which designated him an independent
contractor, claimant was permitted to hire other individuals to
perform work, did not work a fixed schedule, had the right to


     1
        ADS utilized a third party to perform administrative
services, such as issuing payroll and ensuring that drivers
maintained required insurance.
                              -3-                  518266

accept or reject assignments and was free to work for any other
company (see Matter of Holleran [Jez Enters., Inc.–Commissioner
of Labor], 98 AD3d at 759; compare Matter of Lewis [Absolute
Distrib., Inc.–Commissioner of Labor], 121 AD3d 1488, 1488-1489
[2014]; Matter of Khan [Mirage Limousine Serv., Inc.
–Commissioner of Labor], 66 AD3d 1098, 1099 [2009], lv denied 13
NY3d 717 [2010]). Under these circumstances, we are unable to
conclude that substantial evidence exists supporting the Board's
decision that ADS exercised sufficient control over claimant to
establish an employer-employee relationship (see Matter of John
Lack Assoc., LLC [Commissioner of Labor], 112 AD3d 1042, 1043
[2013]; Matter of Holleran [Jez Enters., Inc.–Commissioner of
Labor], 98 AD3d at 758) and, therefore, the Board's decisions
must be reversed.

     Lahtinen, J.P., Garry, Egan Jr. and Devine, JJ., concur.



      ORDERED that the decisions are reversed, without costs, and
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
