Matter of June-Il Kim (Suk Inc.--Commissioner of Labor)

Matter of June-Il Kim (Suk Inc.--Commissioner of Labor) 2015 NY Slip Op 03438 Decided on April 23, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 23, 2015
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[*1] JUNE-IL KIM, Respondent.

and

SUK INCORPORATED, Doing Business as RAINBOW LIMOUSINE, Appellant. COMMISSIONER OF LABOR, Respondent.

Calendar Date: March 23, 2015
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

Dawn M. Cardi & Associates, New York City (Chad L. Edgar of counsel), for appellant.

Bidol-Lee Law, PC, Ridgewood, New Jersey (HyoSung Bidol-Lee of counsel), for June-Il Kim, respondent.

Egan Jr., J.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 27, 2013, which ruled that claimant was eligible to receive unemployment insurance benefits.

SUK Incorporated operates a black car limousine business that transports clients in and around New York City. Claimant worked for SUK for several years and, after he was terminated in 2010, applied for unemployment insurance benefits. The Department of Labor concluded that claimant's base period employment with SUK was not covered employment under Labor Law

§ 511 because there was insufficient evidence to establish that an employment relationship existed between SUK and claimant. The Unemployment Insurance Appeal Board ultimately disagreed and found that, because claimant was an employee of SUK, he was eligible to receive benefits. SUK now appeals.

We affirm. It is well settled that "the existence of an employment relationship is a factual issue for the Board to decide and its decision will be not disturbed if supported by substantial evidence" (Matter of Anwer [Exclusive Fragrance & Cosmetics, Inc.—Commissioner of Labor], 114 AD3d 1114, 1115 [2014]; see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]). "An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or [*2]the means used to achieve the results," with control over the latter being more important (Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d at 437 [citation omitted]; see Matter of Anwer [Exclusive Fragrance & Cosmetics, Inc.—Commissioner of Labor], 114 AD3d at 1115).

Here, the record establishes that SUK assigned jobs to claimant and fielded complaints from its customers. Additionally, SUK imposed numerous restrictions upon claimant, including prohibiting him from working with its competitors, imposing detailed rules as to acceptable work dress and behavior and requiring him to drive a specific type of car. SUK also set the rate collected from the passengers and handled all voucher billing. Thus, despite proof that might support a different conclusion, substantial evidence supports the Board's decision that claimant was an employee of SUK (see Matter of Khan [Mirage Limousine Serv., Inc.—Commissioner of Labor], 66 AD3d 1098, 1100 [2009], lv denied 13 NY3d 717 [2010]; Matter of Spectacular Limo Link, Inc. [Commissioner of Labor], 21 AD3d 1172, 1173 [2005]). As a final matter, the Board need not "explicitly distinguish in its written decisions each and every arguably similar case that it previously has decided" and, hence, was not required to address the distinguishable cases relied upon by SUK (Matter of Westney [Classic Airport Share-Ride], 262 AD2d 894, 895 [1999]).

McCarthy, J.P., Devine and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.