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In the Matter of the Claim of

State of New York Supreme Court, Appellate Division Third Judicial Department


January 5, 2012

IN THE MATTER OF THE CLAIM OF DAVID COBRIN, RESPONDENT. TELECOM CONSULTING GROUP NE CORPORATION,
APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed December 29, 2009, which ruled that Telecom Consulting Group NE Corporation is liable for additional unemployment insurance contributions on renumeration paid to claimant and others similarly situated.

The opinion of the court was delivered by: Rose, J.

MEMORANDUM AND ORDER

Calendar Date: November 16, 2011

Before: Peters, J.P., Rose, Kavanagh, McCarthy and Garry, JJ.

Telecom Consulting Group NE Corporation (hereinafter TCN) is engaged in the business of, among other things, providing project management consultants to various clients. Claimant, a certified project management professional, was placed by TCN with Eastman Kodak Company (hereinafter Kodak), TCN's main client. Claimant began in April 2003 and the project ended in February 2004. When claimant's work with Kodak ended, he filed a claim for unemployment insurance benefits. Following hearings, the Unemployment Insurance Appeal Board determined that claimant, and others similarly situated, were employees of TCN and were entitled to unemployment insurance benefits. On appeal, we concluded that TCN was deprived of the right to cross-examine claimant and reversed the Board's determination and remitted the matter for further proceedings (36 AD3d 1166 [2007]). Following further proceedings upon remittal, the Board issued decisions again finding that claimant, and others similarly situated, where TCN employees and entitled to benefits. TCN now appeals.

We affirm. "The existence of an employer-employee relationship is a factual determination for the Board that will not be disturbed if supported by substantial evidence" (Matter of Omnipop, Inc. [Commissioner of Labor], 68 AD3d 1575, 1576 [2009] [citations omitted]). Further, "[w]here professionals are involved, the relevant inquiry is 'whether the purported employer retains overall control of important aspects of the services performed'" (Matter of Wells [Madison Consulting, Inc.-- Commissioner of Labor], 77 AD3d 993, 995 [2010], quoting Matter of Piano School of N.Y. City [Commissioner of Labor], 71 AD3d 1358, 1359 [2010]; see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]).

Here, claimant was referred to TCN, which informed him that there was a position available at Kodak. TCN screened claimant's qualifications and then set up an interview for him with Kodak. Once hired, claimant was required to submit his weekly time sheets to TCN, and TCN would pay claimant an hourly rate agreed upon between TCN and Kodak. Kodak would thereafter reimburse TCN for claimant's pay and include a markup that represented TCN's fee for providing claimant's services. Although Kodak directed claimant's daily work activities, set his schedule and provided training, we have held that "an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship" (Matter of Kimberg [Hudacs], 188 AD2d 781, 781 [1992]; accord Matter of Wells [Madison Consulting, Inc.--Commissioner of Labor], 77 AD3d at 995; Matter of Singh [Thomas A. Sirianni, Inc.--Commissioner of Labor], 43 AD3d 498, 499 [2007]). We conclude that the Board's determination that claimant was an employee of TCN is supported by substantial evidence, notwithstanding evidence in the record that would support a contrary conclusion (see Matter of Wells [Madison Consulting, Inc.--Commissioner of Labor], 77 AD3d at 995; Matter of Singh [Thomas A. Siriani, Inc.--Commissioner of Labor], 43 AD3d at 499).

Peters, J.P., Kavanagh, McCarthy and Garry, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120105

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