IN RE: the Claim of Clement G. WESTNEY

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

IN RE: the Claim of Clement G. WESTNEY, Respondent. Classic Airport Share-Ride Ltd., Appellant. Commissioner of Labor, Respondent.

Decided: June 24, 1999

Before:  CARDONA, P.J., MIKOLL, CREW III, YESAWICH JR. and GRAFFEO, JJ. Franklin & Gringer P.C. (Robert G. Lipp of counsel), Garden City, for appellant. McNamee, Lochner, Titus & Williams P.C. (Francis J. Smith of counsel), Albany, for Clement G. Westney, respondent. Eliot Spitzer, Attorney-General (Steven Segall of counsel), New York City, for Commissioner of Labor, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 30, 1998, which ruled that the employer was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

Pursuant to an agreement with Classic Airport Share-Ride Ltd., claimant drove a van that was used to provide airport transportation services.   Following his separation from employment, claimant applied for and was determined eligible to receive unemployment insurance benefits.   A series of administrative hearings ensued, at the conclusion of which the Administrative Law Judge overruled the initial determination, finding that Classic did not exercise sufficient supervision, direction or control over claimant's activities to establish an employer/employee relationship.   Upon administrative appeal, the Unemployment Insurance Appeal Board reversed, concluding that claimant indeed performed services for Classic as an employee, as opposed to an independent contractor.   This appeal by Classic ensued.

 We affirm.   Classic's primary argument on appeal is that the Board erred in failing to follow its own precedent as established in two prior cases.   As a general rule, the Board's failure to adhere to its own precedent without explaining the reasons for its departure therefrom requires reversal on the law as arbitrary, even though the record contains substantial evidence to support the Board's determination (see, Matter of Field Delivery Serv. [Roberts], 66 N.Y.2d 516, 520, 498 N.Y.S.2d 111, 488 N.E.2d 1223).   Such a rule does not, however, require the Board to explicitly distinguish in its written decisions each and every arguably similar case that it previously has decided (see, Matter of Carlos [Newsday Inc.-Sweeney], 234 A.D.2d 849, 850, 652 N.Y.S.2d 113;  Matter of Blount [Whalen's Moving & Stor. Co.-Sweeney], 217 A.D.2d 879, 880, 629 N.Y.S.2d 551).   Here, despite some similarities between the matter before us and the prior cases relied upon by Classic, the decision ultimately reached by the Board is not inconsistent, as this case is sufficiently distinguishable from the cases relied upon by Classic to sustain the Board's decision.

 Nor are we persuaded that the Board's decision is not supported by substantial evidence in the record as a whole.   Claimant testified that Classic set the rates to be charged, maintained control over scheduling drivers and required drivers to wear uniforms.   Additionally, claimant testified that he could not refuse work without suffering the loss of future assignments.   Such testimony, coupled with other evidence in the record, supports the Board's conclusion that Classic exercised sufficient direction and control over claimant and others similarly situated to establish an employment relationship (compare, Matter of Kidder [Classic Airport Share-Ride-Commissioner of Labor], 255 A.D.2d 852, 680 N.Y.S.2d 325;  Matter of Ganapathy [Zurich Depository Corp.], 243 A.D.2d 981, 663 N.Y.S.2d 680, with Matter of Rukh [Battery City Car & Limousine Serv.-Hudacs], 208 A.D.2d 1105, 617 N.Y.S.2d 547).   To the extent that the record contains evidence to support a contrary conclusion, the existence of “other evidence (even the greater weight of the evidence) supporting an opposing determination merely create[s] a credibility issue for the Board's determination in the exercise of its exclusive fact-finding authority” (Matter of Eisner [Hertz Corp.-Commissioner of Labor], 252 A.D.2d 847, 848, 675 N.Y.S.2d 700, appeal dismissed 92 N.Y.2d 946, 681 N.Y.S.2d 476, 704 N.E.2d 229).   Classic's remaining contentions have been examined and found to be lacking in merit.

ORDERED that the decision is affirmed, without costs.

CREW III, J.

CARDONA, P.J., MIKOLL, YESAWICH JR. and GRAFFEO, JJ., concur.

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