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Matter of Khamis (Conroy Carriers Inc.--Commissioner of Labor)
Citation: 2022 NY Slip Op 07106Docket: 533554
Court: Appellate Division of the Supreme Court of the State of New York; December 14, 2022; New York; State Appellate Court
Original Court Document: View Document
Conroy Carriers Inc. appealed two decisions from the Unemployment Insurance Appeal Board, which determined that Conroy was liable for additional unemployment insurance contributions based on remuneration paid to Ali A. Khamis and similarly situated individuals. Khamis, a driver with a commercial driver's license who used his own tractor to transport concrete for Conroy, applied for unemployment benefits after his employment ended in 2018. The Board found that Khamis was an employee under the Commercial Goods Transportation Industry Fair Play Act, reversing an Administrative Law Judge's initial ruling. The Fair Play Act establishes that individuals performing commercial goods transportation services for contractors are presumed to be employees unless they qualify as independent contractors or separate business entities. Conroy did not dispute its status as a commercial goods transportation contractor and the record confirmed that Khamis provided such services. The Board's conclusion that Khamis was an employee was supported by substantial evidence, as Conroy failed to prove he was a separate business entity, thus maintaining the statutory presumption of employment. The Appellate Division affirmed the Board's decisions. Claimant provided services to Conroy in an individual capacity rather than as a sole proprietor or business entity. Evidence, including the personal registration of claimant's tractor and the execution of agreements and paychecks in claimant's name, supports this conclusion. From 2016 to 2018, claimant worked primarily for Conroy without offering services to the public. Although claimant incorporated a business in 2010, it was dissolved in 2016, prior to the relevant time frame. Despite some evidence suggesting a sole proprietor status, substantial evidence led the Board to determine that claimant was an employee under the Fair Play Act. Consequently, Conroy is liable for additional unemployment insurance contributions for remuneration paid to claimant and similarly situated individuals. The decision is affirmed without costs. Conroy did not contest the Board's finding that claimant was not an independent contractor under Labor Law § 862-b (1).