State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 4, 2014 518763
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In the Matter of the Claim of
SAMUEL H. LUSTGARTEN,
Respondent.
NEW YORK PSYCHOTHERAPY AND
COUNSELING CENTER, MEMORANDUM AND ORDER
Appellant.
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: October 21, 2014
Before: Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.
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FordHarrison LLP, New York City (Phillip K. Davidoff of
counsel), for appellant.
Michelle I. Rosien, Philmont, for Samuel H. Lustgarten,
respondent.
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Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed June 13, 2013, which ruled that New York
Psychotherapy and Counseling Center was liable for unemployment
insurance contributions based on remuneration paid to claimant
and others similarly situated.
Claimant is a psychiatrist who provided services for
clients of New York Psychotherapy and Counseling Center
(hereinafter NYPCC) for approximately 10 years. After his
employment ended, he applied for unemployment insurance benefits.
The Department of Labor initially determined that claimant was an
employee of NYPCC and that NYPCC was liable for contributions
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based on remuneration paid to claimant and others similarly
situated. NYPCC objected on the ground that claimant was an
independent contractor. Following a hearing, the Administrative
Law Judge sustained the initial determination and the
Unemployment Insurance Appeal Board affirmed. NYPCC now appeals.
We affirm. "Whether there exists an employee-employer
relationship is a factual question to be resolved by the Board
and we will not disturb its determination when it is supported by
substantial evidence in the record" (Matter of McCollum [Fire Is.
Union Free Sch. Dist.–Commissioner of Labor], 118 AD3d 1203, 1203
[2014] [citation omitted]; see Matter of Joyce [Coface N. Am.
Ins. Co.–Commissioner of Labor], 116 AD3d 1132, 1133-1134
[2014]). Further, "[w]here, as here, medical professionals are
involved, the pertinent inquiry is whether the purported employer
exercised overall control over the work performed" (Matter of
Scinta [ExamOne World Wide Inc.–Commissioner of Labor], 113 AD3d
959, 960 [2014]; accord Matter of Goddard [Summit Health, Inc.–
Commissioner of Labor], 118 AD3d 1200, 1201 [2014], lv dismissed
24 NY3d 975 [2014]).
Here, evidence was presented that NYPCC referred the
patients to claimant and scheduled their initial appointments.
NYPCC paid claimant an hourly wage for the time he treated the
patients and NYPCC would bill the patients. Claimant was paid
whether or not NYPCC was reimbursed by the patients or their
health plans. Claimant worked in an office provided by NYPCC on
NYPCC's premises – for which he only paid a nominal weekly fee of
$9.87 – and would generate a treatment record that is accessed by
NYPCC's doctors and staff. Based upon the foregoing, we conclude
that substantial evidence supports the Board's determination that
NYPCC retained sufficient overall control over the work performed
by claimant and those similarly situated in order to establish an
employee-employer relationship, notwithstanding other proof in
the record that could support a contrary result (see Matter of
Goddard [Summit Health, Inc.–Commissioner of Labor], 118 AD3d at
1201-1202; Matter of Scinta [ExamOne World Wide Inc.–Commissioner
of Labor], 113 AD3d at 960-961).
Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.,
concur.
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ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court