In re the Claim of Youngman

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed December 18, 2013, which ruled, among other things, that RB Humphreys Inc. was liable for unemployment insurance contributions based on remuneration paid to claimant and others similarly situated.

RB Humphreys Inc. is engaged in the business of delivering time and temperature sensitive materials. Claimant was initially employed by RB Humphreys to deliver fresh seafood to locations in central New York. In 2010, however, he executed an agreement contemplating that he would perform the same work as an independent contractor. After this relationship ended in 2011, claimant applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board ultimately found, as is relevant here, that claimant was an employee of RB Humphreys from 2010 onward. RB Humphreys appeals.

We affirm. It is well established “that the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence” (Matter of Spielberger [Commissioner of Labor], 122 AD3d 998 , 999 [2014]; 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 control over the latter of more significance (Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d at 437 [citation omitted]; see Matter of Spielberger [Commissioner of Labor], 122 AD3d at 999 ).

Here, RB Humphreys would notify claimant of the delivery dates and times after consulting with its customers. Claimant was paid by RB Humphreys, and it was RB Humphreys that billed the customers. RB Humphreys further handled customer complaints and, barring negligence on the part of claimant, remained responsible for deliveries that were late or included damaged goods. Claimant also used a truck owned by RB Humphreys and, while the truck was provided pursuant to a lease purchase agreement, he never received title to the truck. Moreover, claimant was bound by a one-year noncompetition restriction after the termination of his services. Thus, notwithstanding evidence that could support a different result, the

foregoing facts provide substantial evidence to support the finding of an employer-employee relationship between claimant and RB Humphreys (see Matter of Rivera [State Line Delivery Serv. —Roberts], 69 NY2d 679 , 682 [1986], cert denied 481 US 1049 [1987]; Matter of Kelly [Frank Gallo, Inc. —Commissioner of Labor], 28 AD3d 1044 , 1044-1045 [2006], lv dismissed 7 NY3d 844 [2006]; Matter of CDK Delivery Serv. [Hartnett], 151 AD2d 932 , 933 [1989]).

The remaining arguments of RB Humphreys, to the extent they are properly preserved for our review, have been examined and found to be lacking in merit.

Peters, P.J., Garry, Rose and Lynch, JJ., concur.

Ordered that the decisions are affirmed, without costs.