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In re Claim of Duffy

172 A.D.2d 914 Court N.Y. App. Div. Decision date 1991-04-04 English

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In the Matter of the Claim of Edward Duffy, Respondent. North American Van Lines, Inc., Appellant; Thomas F. Hartnett, as Commissioner of Labor, Respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 28, 1989, which, inter alia, assessed North American Van Lines, Inc. for additional unemployment insurance contributions.

There is substantial evidence in the record to support the Unemployment Insurance Appeal Board’s decision that North American Van Lines, Inc. (hereinafter NAVL) had substantial control over claimant, thus indicating that an employer/employee relationship existed. For example, although claimant was permitted to work for other carriers, this was subject to NAVL’s authorization, thereby limiting claimant’s ability to generate business of his own, and NAVL was the source of claimant’s access to work and customers (see, Matter of Webley [Graphic Transmissions—Roberts], 133 AD2d 885 ). In addition, NAVL’s name was printed on the tractor and trailer and NAVL owned the trailer that claimant hauled (see, Matter of

p. 915
Davis [RTC Transp.—Roberts], 111 AD2d 1030 , 1031). Finally, claimant was not allowed to refuse any loads that NAVL asked him to haul and he was required to call in by a certain time every day to report the progress of his trip. While other factors may support NAVL’s contention that claimant was an independent contractor, affirmance is required since the determination that claimant was an employee of NAVL is supported by substantial evidence (see, Matter of Blount [Whalen’s Moving & Stor. Co.—Hartnett], 154 AD2d 849 , 849-850, lv denied 76 NY2d 702 ).

Decision affirmed, without costs. Casey, J. P., Mikoll, Levine, Mercure and Crew III, JJ., concur.

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