In re La Nova Pizzeria, Inc.

220 A.D.2d 920, 632 N.Y.S.2d 679, 1995 N.Y. App. Div. LEXIS 10163

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 1995
• Status: Published

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 27, 1994, which assessed La Nova Pizzeria, Inc. for additional unemployment insurance contributions.

La Nova Pizzeria, Inc. operates a fast food restaurant in the City of Buffalo, Erie County. The Board assessed La Nova for additional unemployment insurance contributions based upon payments allegedly made to certain drivers who deliver La Nova’s food to customers. La Nova challenges this assessment and argues that the Board’s finding that these drivers were its employees is not supported by substantial evidence in the record. We agree.

Although the auditor testified that La Nova paid these drivers one dollar in cash for each delivery, no evidence was adduced at the hearing to demonstrate that La Nova exercised the requisite '.'control over the results produced or over the means used to achieve the results” (Matter of Rivera [State Line Delivery Serv.—Roberts], 69 NY2d 679, 682, cert denied 481 US 1049) necessary to establish the existence of an employment relationship with these drivers. Indeed, there was evidence that the drivers paid La Nova for the food they delivered to customers, used their own vehicles and were free to work for other restaurants. In addition, while La Nova specified delivery hours and area on its menus, there was evidence that these drivers worked according to their own schedules and that, if no drivers were available, La Nova would so inform its customers. Finally, there was evidence that La Nova did not have a written contract with these drivers and did not provide them with workers’ compensation insurance, training, expense reimbursement or breakroom facilities. Under these circumstances, we find that the Board’s decision is not supported by substantial evidence and, therefore, must be overruled.

Cardona, P. J., Mikoll, Crew III, White and Yesawich Jr., JJ., concur. Ordered that the decision is reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court’s decision.