Opinion
Decided December 18, 1986
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Robert Abrams, Attorney-General (Richard S. LoPrimo, Rochelle M. Baron and Iris A. Steel of counsel), for Lillian Roberts, as Commissioner of Labor, appellant in proceedings Nos. 1 and 3 and respondent in proceeding No. 2.
Evan J. Spelfogel for Majestic Messenger Service, Inc., appellant.
David J. Wukitsch for Joan M. Fox, appellant.
John D. Chestara for Juan F. Rivera, respondent.
Alvin Altman for State Line Delivery Service, Inc.,
respondent.
Donald W. Boyajian for James P. Ross, respondent.
Daniel P. Forsyth for James Whalen, respondent.
MEMORANDUM.
The orders of the Appellate Division in Rivera and Fox should be reversed, with costs, and the decisions of the Unemployment Insurance Appeals Board reinstated and the order of the Appellate Division in Ross should be affirmed, with costs.
In each of these cases whether the relationships of the operators-deliverers with the delivery companies is that of employees or independent contractors involves a question of fact as to whether there is evidence of either control over the results produced or over the means used to achieve the results (Matter of Field Delivery Serv. [Roberts], 66 N.Y.2d 516, 521; Matter of Ted Is Back Corp. [Roberts], 64 N.Y.2d 725; Matter of 12 Cornelia St. [Ross], 56 N.Y.2d 895, 897; Matter of Sullivan Co. [Miller], 289 N.Y. 110, 112). The agency's determination of this question of fact, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record to support a contrary conclusion (Matter of Field Delivery Serv. [Roberts], supra; Matter of Concourse Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734, 736; Matter of Morton [Miller], 284 N.Y. 167; Matter of Stork Rest. v Boland, 282 N.Y. 256). The determination in each case by the Unemployment Insurance Appeal Board that the relationship was that of employer-employee is amply supported by proof in the record. There being substantial evidence to sustain the determinations, the judicial inquiry is complete (Matter of Field Delivery Serv. [Roberts], supra; Matter of Villa Maria Inst. of Music [Ross], 54 N.Y.2d 691, 692). Moreover, the agency determinations in these three cases are consistent with prior cases with substantially similar facts (Matter of Field Delivery Serv. [Roberts], supra, at p 520; see, Matter of Di Martino [Buffalo Courier Express Co. — Ross], 89 A.D.2d 829, affd 59 N.Y.2d 638; Matter of Wells [Utica Observer-Dispatch Utica Daily Press — Roberts], 87 A.D.2d 960, affd 59 N.Y.2d 638).
We have considered the other arguments raised by the parties and find them to be without merit.
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.
In Matter of Rivera and Fox: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, with costs, and decision of the Unemployment Insurance Appeals Board reinstated in a memorandum.
In Matter of Ross: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.