Opinion
May 6, 1993
Appeal from the Unemployment Insurance Appeal Board.
According to the testimony of one of Ronald Santamore's drivers, he and Santamore agreed that the driver would "lease" one of Santamore's trucks in exchange for a percentage of the revenues the driver earned by hauling freight with the truck. The driver never made rental payments to Santamore; instead, Santamore paid the driver his remuneration and reimbursements less any advances the driver had received. Santamore paid for the insurance and inspection of the truck. He also reimbursed the driver for fuel, tolls, repairs and maintenance expenses on the truck. Santamore referred the driver to a specific dispatching company which assigned the work, billed the shippers and provided the trailers that the driver hauled. The driver understood that he could not work for another dispatching company or hire a substitute driver without first obtaining Santamore's approval.
Under these circumstances, there is substantial evidence to support the conclusion by the Unemployment Insurance Appeal Board that, although the driver dealt primarily with another company which handled the dispatching and monitoring of his activities, Santamore exercised a sufficient degree of overall control over the driver's services and others similarly situated to establish an employer-employee relationship (see, Matter of Lincoln Stor. [Hartnett], 156 A.D.2d 832, affd sub nom. Matter of Lafayette Stor. Moving Corp. [Hartnett], 77 N.Y.2d 823). To the extent that the driver received his daily instructions from the dispatching company, it can be said that the company was acting as Santamore's agent "for the purpose of supervising the [driver's] daily work" (Matter of Nurse Care Registry [Hartnett], 154 A.D.2d 804, 805, lv denied 76 N.Y.2d 701; see, Matter of Furno [Panasonic Co. — Roberts], 102 A.D.2d 937, lv denied 63 N.Y.2d 610).
Mikoll, J.P., Yesawich Jr., Crew III, Mahoney and Harvey, JJ., concur. Ordered that the decision is affirmed, without costs.