In the Matter of MARIA K. PHILIP, Respondent. JULES BRODY, Doing Business as STULL STULL & BRODY, Appellant. COMMISSIONER OF LABOR, Respondent.
Calendar Date: June 1, 2018
Graubard Miller, New York City (C. Daniel Chill of counsel),
Catherine A. Barber, Guilderland, for Maria K. Philip,
Barbara D. Underwood, Attorney General, New York City (Mary
Hughes of counsel), for Commissioner of Labor, respondent.
Before: McCarthy, J.P., Lynch, Devine, Clark and Rumsey, JJ.
MEMORANDUM AND ORDER
from three decisions of the Unemployment Insurance Appeal
Board, filed January 20, 2017, which ruled, among other
things, that Jules Brody was liable for additional
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.
an attorney, performed document review services for Jules
Brody, a partner of Stull Stull & Brody, a law firm.
Claimant left that position due to the impending birth of a
child and applied for unemployment insurance benefits. The
Unemployment Insurance Appeal Board eventually ruled that
claimant was Brody's employee and was entitled to
unemployment insurance benefits, and that Brody was
responsible for additional unemployment insurance
contributions on remuneration paid to claimant and others
similarly situated. We reversed and remitted for further
proceedings, finding that Brody had been denied the right to
call claimant as a witness at the hearing (120 A.D.3d 1470,
1471 ). Upon remittal, a hearing was held at which
claimant testified. The Administrative Law Judge sustained
the initial determination that claimant was an employee of
Brody and held that Brody is liable for additional
contributions based upon remuneration paid to claimant and
others similarly situated. The Board affirmed, and Brody
affirm. "The existence of an employer-employee
relationship is a factual issue to be resolved by the Board
and its determination will be upheld so long as it is
supported by substantial evidence" (Matter of
Charleston [Commissioner of Labor], 138 A.D.3d 1366,
1366 , lv dismissed 28 N.Y.3d 942');">28 N.Y.3d 942 ).
Where, as here, claimant rendered professional services,
"an employment relationship may be found to exist if
there is 'substantial evidence of control over important
aspects of the services performed other than results or
means'" (id. at 1367, quoting Matter of
Empire State Towing & Recovery Assn., Inc. [Commissioner
of Labor], 15 N.Y.3d 433, 437 ; see Matter of
Singhal [Brody-Commissioner of Labor], 128 A.D.3d 1308,
record reflects that Brody paid claimant an hourly set wage,
required her to work at least 10 hours per day, Monday
through Friday, and required her to obtain approval to take
time off. Claimant was required to undergo training on how to
do the work, was provided with a computer and workspace, and
was assigned documents to review. She was, moreover, required
to document her hours and meet with her supervisor to review
her submitted hours and receive updates on the case. Claimant
did not have an independent legal practice or business
(compare Matter of Empire State Towing & Recovery
Assn., Inc. [Commissioner of Labor], 15 N.Y.3d at 435).
foregoing constitutes substantial evidence supporting the
Board's determination that Brody retained sufficient
overall control of claimant's services to establish an
employer-employee relationship, notwithstanding evidence in
the record that might support a contrary conclusion (see
Matter of Singhal [Brody- Commissioner of Labor], 128
A.D.3d at 1309; see also Matter of Charleston
[Commissioner of Labor], 138 A.D.3d at 1367; Matter
of Parisi [Commissioner of Labor], 54 A.D.3d 456, 457
; Matter of Singh [Thomas A. Sirianni,
Inc.-Commissioner of Labor], 43 A.D.3d 498, 499 ;
Matter of Spinnell [Commissioner of Labor], 300
A.D.2d 770, 771 ). A different result is not compelled
by the facts that claimant signed a written agreement
labelling her as an independent contractor and believed that
she performed in that capacity (see Matter of Singhal
[Brody-Commissioner of Labor], 128 A.D.3d at 1309).
Brody's remaining claims have been considered and found
to be without merit.
McCarthy, J.P., Lynch, Clark and ...