In re the Claim of Davila ( 1990 )

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 24, 1989, which, inter alia, assessed Colorite Film Processing, Inc. for unemployment insurance contributions.

The conclusion that Colorite Film Processing, Inc. exercised sufficient direction and control over its messengers to establish their status as employees is supported by substantial evidence in the record (see, Matter of Di Martino [Buffalo Courier Express Co.—Ross], 59 NY2d 638). This is true even though there was evidence in the record which could have arguably supported a contrary conclusion (see, Matter of CDK Delivery Serv. [Hartnett], 151 AD2d 932). The messengers telephone Colorite’s dispatcher for pick-up instructions, the deliveries were required to be completed the same day, Colorite set the pay rates for small package delivery and sometimes directed the order of delivery, and customer complaints were directed to Colorite. The remaining contentions of Colorite have been addressed and found lacking in merit.

Decision affirmed, without costs. Mahoney, P. J., Weiss, Mikoll, Yesawich, Jr., and Levine, JJ., concur.