IN RE: ODYSSEY TRANSPORTATION

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: ODYSSEY TRANSPORTATION, LLC, Appellant. Commissioner of Labor, Respondent.

Decided: May 21, 2009

Before:  PETERS, J.P., LAHTINEN, KANE, KAVANAGH and GARRY, JJ. Pike & Pike, P.C., Bellmore (Kenneth R. Tuch of counsel), for appellant. Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 2, 2007, which ruled that Odyssey Transportation, LLC was liable for unemployment insurance contributions on remuneration paid to certain drivers.

Odyssey Transportation, LLC operates a limousine transportation service that works through franchise agreements with its drivers.   The Unemployment Insurance Appeal Board found that an employment relationship existed between Odyssey and the drivers and assessed it additional unemployment insurance contributions in the amount of $71,262.12.   Odyssey appeals.

The record demonstrates that Odyssey assigns jobs to the drivers and requires them to display a company sign and adhere to a dress code.   Odyssey sets the rates that clients are charged and handles billing, collections and customer complaints.   Drivers are required to submit vouchers each week, are paid 80% to 83% of the fares they collect, are reimbursed for tolls and are paid by Odyssey regardless of whether the client has paid.   Drivers are prohibited from working for another ground transportation company and may not use substitute drivers for assignments.   Given similar facts, we have consistently held that the Board's determination finding that drivers were employees was supported by substantial evidence, despite the existence of evidence which might support a contrary conclusion (see Matter of Automotive Serv. Sys., Inc. [Commissioner of Labor], 56 A.D.3d 854, 855-856, 867 N.Y.S.2d 232 [2008];  Matter of Spectacular Limo Link, Inc. [Commissioner of Labor], 21 A.D.3d 1172, 1173, 800 N.Y.S.2d 794 [2005];  Matter of De Paiva [Olympic Limousine-Commissioner of Labor], 270 A.D.2d 534, 534-535, 703 N.Y.S.2d 589 [2000] ).

ORDERED that the decision is affirmed, without costs.

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