State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 16, 2015 519579
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In the Matter of the Claim of
JASON KLOTZ,
Respondent.
BLUE PERIMETER, INC., MEMORANDUM AND ORDER
Appellant.
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: February 24, 2015
Before: Lahtinen, J.P., Rose, Lynch and Clark, JJ.
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Benjamin F. Neidl, Albany, for appellant.
Cynthia Feathers, Glens Falls, for Jason Klotz, respondent.
Eric T. Schneiderman, Attorney General, New York City
(Linda D. Joseph of counsel), for Commissioner of Labor,
respondent.
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Appeal from two decisions of the Unemployment Insurance
Appeal Board, filed November 5, 2013, which ruled, among other
things, that Blue Perimeter, Inc. was liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.
Claimant was hired by Blue Perimeter, Inc., a company that
purported to provide "security professionals" to its clients, and
he was assigned to work as a licensed security guard at a hotel.
After his employment ended, claimant filed a claim for
unemployment insurance benefits. The Department of Labor issued
-2- 519579
an initial determination finding that Blue Perimeter exercised
sufficient control over claimant's work in order to establish an
employer-employee relationship. Three subsequent hearings were
held and Blue Perimeter appeared without counsel at the first two
and provided testimony, but also requested and was granted
adjournments in order to have time to consult with counsel. When
neither Blue Perimeter nor counsel attended the third hearing,
the Administrative Law Judge (hereinafter ALJ) closed the hearing
and rendered a decision on the merits sustaining the initial
determination. Blue Perimeter thereafter applied for the matter
to be reopened for a new hearing. The Unemployment Insurance
Appeal Board treated the application as a notice of appeal and
ruled that an employment relationship existed between Blue
Perimeter and claimant, and that Blue Perimeter was liable for
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated. Blue Perimeter now
appeals.
We affirm. Initially, although a case may be reopened
"where a decision was rendered upon or following the default of a
party" (12 NYCRR 461.8), we cannot say that the Board abused its
discretion in considering the application to reopen as a request
for a new hearing, inasmuch as Blue Perimeter had not defaulted,
having appeared at two hearings and, after informing the ALJ that
it was ready to proceed, presented evidence that was considered
by the ALJ in a determination on the merits. Further, the
Board's decision not to hold a new hearing was also within its
discretion, given that Blue Perimeter had already been provided
two previous adjournments (see 12 NYCRR 463.1 [f] [2]; Matter of
Miller [Commissioner of Labor], 9 AD3d 567, 568 [2004]).
Turning to the merits, "[t]he existence of an employer-
employee relationship is a factual issue for the Board to resolve
and its decision will be upheld if supported by substantial
evidence" (Matter of Ruano [Commissioner of Labor], 118 AD3d
1088, 1088 [2014], lv dismissed 24 NY3d 1039 [2014]; see Matter
of Victor [Aubrey Organics, Inc.–Commissioner of Labor], 116 AD3d
1327, 1327 [2014]). Significantly, "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
-3- 519579
[Hudacs], 188 AD2d 781, 781 [1992]; accord Matter of Ivy League
Tutoring Connection, Inc. [Commissioner of Labor], 119 AD3d 1260,
1260 [2014]; Matter of Lamar [Eden Tech., Inc.–Commissioner of
Labor], 109 AD3d 1038, 1039 [2013]; see Matter of Ray Catena
Corp. [Commissioner of Labor], 274 AD2d 819, 820 [2000]). Here,
the record reflects that Blue Perimeter ensured that claimant was
licensed in New York as a security guard, assigned him to work at
the hotel and paid him at a negotiated rate, whether or not it
received payment from the hotel. Moreover, Blue Perimeter
established claimant's schedule and there is evidence that it had
a supervisor on site at the hotel. Accordingly, there is
substantial evidence supporting the Board's decisions and they
will not be disturbed, despite evidence in the record that could
support a contrary result (see Matter of Ivy League Tutoring
Connection, Inc. [Commissioner of Labor], 119 AD3d at 1261;
Matter of Lamar [Eden Tech., Inc.–Commissioner of Labor], 109
AD3d at 1039).
Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court