Opinion

Claim of Jennings v. Avanti Express, Inc.

  • 91 A.D.3d 999
  • 936 N.Y.2d 718
Court
Appellate Division of the Supreme Court of the State of New York
Filed
Jan 5, 2012
Status
Published
Author
Garry
On the bench
Garry
Cited by
9 cases
Authority
More cited than 73.6%

The opinion

Garry, J.

Whether an employer-employee relationship exists is a factual issue to be resolved by the Board and such determination will be upheld if substantial evidence exists in the record to support it (see Matter of Duma v Baca, 83 AD3d 1228, 1228 [2011]; Matter of Brown v City of Rome, 66 AD3d 1092, 1092 [2009]; Matter of Ellingwood v Liberty Group Publ., Inc., 38 AD3d 1108, 1109 [2007]). Factors relevant to the determination of an employer- *1000 employee relationship include the right to control the alleged employee’s work and set his or her schedule, the manner and method of payment, the right to discharge and the furnishing of equipment (see Matter of Duma v Baca, 83 AD3d at 1228-1229 ; Matter of Brown v City of Rome, 66 AD3d at 1092 ). The record reveals that decedent’s delivery schedule was determined by the employer, and the employer provided decedent with a vehicle, an E-ZPass for the payment of tolls and GPS device. Further, the employer required decedent to dress in a certain manner and the employer paid decedent through a payroll service on a weekly basis according to a formula devised by the employer. We thus find that the Board’s determination is supported by substantial evidence, and must be affirmed, despite the existence of evidence that could support a contrary conclusion (see Matter of Duma v Baca, 83 AD3d at 1229 ; Matter of Enriquez v Home Lawn Care & Landscaping, Inc., 77 AD3d 1149, 1151 [2010]; Matter of Brown v City of Rome, 66 AD3d at 1093 ).

Peters, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the decision is affirmed, without costs.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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