IN RE: The Claim of Kristin DIFALCO

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

IN RE: The Claim of Kristin DIFALCO, Respondent. Gannett Satellite Information Network, Inc., Doing Business as Poughkeepsie Journal, Appellant. Commissioner of Labor, Respondent.

525834

Decided: November 07, 2019

Before: Egan Jr., J.P., Clark, Mulvey and Devine, JJ. Bond, Schoeneck & King, PLLC, Syracuse (L. Michael Zinser of The Zinser Law Firm, PC, Nashville, Tennessee, admitted pro hac vice), for appellant. Carolyn B. George, Albany, for Kristin DiFalco, respondent.

MEMORANDUM AND ORDER

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed October 10, 2017, which ruled that Gannett Satellite Information Network, Inc. was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

Claimant contracted to provide residential newspaper delivery services during various periods between 2013 and 2015 for Gannett Satellite Information Network, Inc. (hereinafter Gannett), which prints and publishes the Poughkeepsie Journal, a daily newspaper. After claimant stopped delivering newspapers, she applied for unemployment insurance benefits. The Department of Labor determined that an employment relationship existed between claimant and Gannett, that claimant was entitled to credit for remuneration paid to her and that Gannett was liable for additional unemployment insurance contributions for remuneration paid to claimant and other similarly situated newspaper carriers. Gannett objected and, following a hearing, an Administrative Law Judge sustained the Department's determinations. Upon Gannett's appeal, the Unemployment Insurance Appeal Board affirmed. Gannett appeals.

We affirm. “Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” (Matter of Fecca [Herald Publ. Co.-Commissioner of Labor], 171 A.D.3d 1423, 1424, 99 N.Y.S.3d 110 [2019] [internal quotation marks and citation omitted] ). Upon review of the record and hearing testimony, we find that the indicators of control retained and exercised by Gannett in its contract and dealings with claimant are not materially distinguishable from those previously found to have established an employer-employee relationship between newspaper publishers and delivery workers (see Matter of Polimeni [Gannett Co., Inc. -Commissioner of Labor], 170 A.D.3d 1346, 1346–1347, 94 N.Y.S.3d 462 [2019]; Matter of Nicholas [Gannett Satellite Info. Network, Inc.-Commissioner of Labor], 167 A.D.3d 1180, 1181, 87 N.Y.S.3d 919 [2018]; see also Matter of Kriplin [Community Newspaper Group LLC–Commissioner of Labor], 173 A.D.3d 1571, 1572, 102 N.Y.S.3d 811 [2019]; Matter of Fecca [Herald Publ. Co.-Commissioner of Labor], 171 A.D.3d at 1425–1426, 99 N.Y.S.3d 110; Matter of Lucas [Community First Holdings, Inc.-Commissioner of Labor], 170 A.D.3d 1384, 1385, 96 N.Y.S.3d 718 [2019]; Matter of Armison [Gannett Co., Inc.-Commissioner of Labor], 122 A.D.3d 1101, 1102–1103, 995 N.Y.S.2d 856 [2014], lv dismissed 24 N.Y.3d 1209, 4 N.Y.S.3d 590, 28 N.E.3d 24 [2015]).1 Although Gannett “points out numerous factors that would support a finding that claimant was an independent contractor, we find, consistent with our holdings in similar appeals, that the record contains substantial evidence to support the Board's finding of an employment relationship, precluding further judicial review” (Matter of Kriplin [Community Newspaper Group LLC–Commissioner of Labor], 173 A.D.3d at 1573, 102 N.Y.S.3d 811; see Matter of Hennessy [Hearst Corp.-Commissioner of Labor], 172 A.D.3d 1842, 1843–1844, 102 N.Y.S.3d 310 [2019], appeal dismissed ––– N.Y.3d ––––, 2019 WL 5281046 [Oct. 17, 2019]; Matter of Fecca [Herald Publ. Co.-Commissioner of Labor], 171 A.D.3d at 1425–1426, 99 N.Y.S.3d 110; Matter of Rosenfelder [Community First Holdings, Inc.-Commissioner of Labor], 137 A.D.3d 1438, 1440, 28 N.Y.S.3d 137 [2016]; cf. Matter of Yoga Vida NYC, Inc. [Commissioner of Labor], 28 N.Y.3d 1013, 1015–1016, 41 N.Y.S.3d 456, 64 N.E.3d 276 [2016]; Bynog v. Cipriani Group, 1 N.Y.3d 193, 198–200, 770 N.Y.S.2d 692, 802 N.E.2d 1090 [2003]). Contrary to its detailed claims, Gannett has not demonstrated that the Board ignored or misapplied the Department's guidelines in rendering its determination (see Matter of Fecca [Herald Publ. Co.-Commissioner of Labor], 171 A.D.3d at 1426, 99 N.Y.S.3d 110). Gannett's remaining claims have been reviewed and found to lack merit.

ORDERED that the decisions are affirmed, without costs.

FOOTNOTES

1.   The amendment to Labor Law § 511(23)(a) (L 2016, ch 503, § 1), which excludes “the delivering or distribution of newspapers or shopping news” from the definition of “employment” is inapplicable as it was not effective until November 28, 2016, long after the relevant periods (see Matter of Fecca [Herald Publ. Co.-Commissioner of Labor], 171 A.D.3d at 1426, 99 N.Y.S.3d 110).

Devine, J.

Egan Jr., J.P., Clark and Mulvey, JJ., concur.

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