IN RE: the Claim of Essam K. ELIRAKY

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

IN RE: the Claim of Essam K. ELIRAKY, Respondent. Crosslands Transportation, Inc., Appellant. Commissioner of Labor, Respondent.

Decided: September 22, 2005

Before:  PETERS, J.P., SPAIN, CARPINELLO, MUGGLIN and ROSE, JJ. Pike & Pike, Bellmore (Roberta C. Pike of counsel), for appellant. McNamee, Lochner, Titus & Williams P.C., Albany (Francis J. Smith of counsel), for Essam K. Eliraky, respondent. Eliot Spitzer, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 19, 2004, which ruled that claimant and others similarly situated were employees of Crosslands Transportation, Inc.

Upon receiving claimant's application for unemployment insurance benefits, the Commissioner of Labor determined that claimant, a limousine driver, had been an employee of Crosslands Transportation, Inc.   Crosslands disputed that determination, alleging that claimant was an independent contractor.   Following several hearings, an Administrative Law Judge sustained the initial determination, which decision was upheld by the Unemployment Insurance Appeal Board.   Crosslands now appeals.

 The existence of an employer-employee relationship is a factual determination for the Board to resolve, which will not be disturbed if supported by substantial evidence (see Matter of Lambert [Commissioner of Labor], 18 A.D.3d 1049, 1050, 794 N.Y.S.2d 742 [2005];  Matter of Stuckelman [Commissioner of Labor], 16 A.D.3d 882, 882, 791 N.Y.S.2d 225 [2005] ).   Here, the record established that, among other things, Crosslands maintained ultimate control over the vehicle driven by claimant, dictated which clients claimant serviced, handled the billing of clients and paid claimant on a regular basis.   This evidence demonstrates that Crosslands exercised sufficient supervision and control over claimant to establish an employment relationship (see Matter of Ted Is Back Corp. [Roberts], 64 N.Y.2d 725, 726, 485 N.Y.S.2d 742, 475 N.E.2d 113 [1984];  Matter of Stuckelman [Commissioner of Labor], supra at 882, 791 N.Y.S.2d 225).   The fact that other evidence was presented in support of Crosslands' contention that claimant acted as an independent contractor does not dictate a contrary result (see Matter of Zelenka [Versace Profumi USA-Commissioner of Labor], 304 A.D.2d 927, 928-929, 759 N.Y.S.2d 198 [2003] ).   Accordingly, we find no basis upon which to disturb the Board's decision.

ORDERED that the decision is affirmed, without costs.

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