State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 19, 2016 520940
________________________________
In the Matter of the Claim of
MICHELE L. CORRENTE,
Respondent.
SELECT MEDICAL CORPORATION, MEMORANDUM AND ORDER
INC., Also Known as SELECT
EMPLOYMENT SERVICES, INC.,
Appellant.
COMMISSIONER OF LABOR,
Respondent.
________________________________
Calendar Date: April 28, 2016
Before: McCarthy, J.P., Garry, Egan Jr., Devine and Aarons, JJ.
__________
Clifton Budd & DeMaria, LLP, New York City (Daniel C.
Moreland of counsel), for appellant.
Michelle I. Rosien, Philmont, for Michele L. Corrente,
respondent.
__________
Devine, J.
Appeals (1) from two decisions of the Unemployment
Insurance Appeal Board, filed July 22, 2014, which ruled, among
other things, that Select Medical Corporation, Inc. was liable
for unemployment insurance contributions on remuneration paid to
claimant and others similarly situated, and (2) from two
decisions of said Board, filed October 7, 2014, which denied a
request by Select Medical Corporation, Inc. for reconsideration
and/or reopening.
-2- 520940
As set out more fully in our decision in Matter of Clarke
(Select Medical Corp.–Commissioner of Labor) (___ AD3d ___
[decided herewith]), Metro Therapy, Inc., a subsidiary of Select
Medical Corporation, Inc. (hereinafter collectively referred to
as the agency), contracts with county health departments and
school districts to provide supplemental educational services to
children. Claimant, a licensed speech therapist, signed an
independent contractor agreement with the agency. The agency
billed its clients for claimant's work using reports and forms
prepared by her, and claimant was paid pursuant to a fee schedule
that was subject to negotiation. Claimant applied for
unemployment insurance benefits in 2010 and, following hearings,
the Unemployment Insurance Appeal Board concluded that claimant
and others similarly situated are employees of the agency and
that the agency is liable for additional unemployment insurance
contributions. The agency's subsequent request for
reconsideration and/or reopening was denied by the Board. The
agency now appeals from these decisions.
"Whether an employer-employee relationship exists is a
factual determination for the Board, and its decision will be
upheld if supported by substantial evidence" (Matter of John Lack
Assoc., LLC [Commissioner of Labor], 112 AD3d 1042, 1043 [2013]
[citations omitted]; see Matter of Empire Towing & Recovery
Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010];
Matter of Salamanca Nursing Home [Roberts], 68 NY2d 901, 903
[1986]). Where, as here, "the details of the work performed are
difficult to control because of considerations such as
professional responsibilities, courts have applied the overall
control test, which requires that the employer exercise control
over important aspects of the services performed" (Matter of
Wright [Mid Is. Therapy Assoc. LLC–Commissioner of Labor], 134
AD3d 1216, 1217 [2015] [internal quotation marks and citation
omitted]; see Matter of Empire State Towing & Recovery Assn.,
Inc. [Commissioner of Labor], 15 NY3d at 437-438).
The record here lacks substantial evidence that the agency
exercised overall control of important aspects of claimant's
therapy services, the policies and procedures for which are
dictated by statutes and regulations governing the provision of
supplemental educational and related services (see Matter of
-3- 520940
Clarke [Select Medical Corp. Inc.–Commissioner of Labor], supra).
As in Matter of Wright (Mid Is. Therapy Assoc. LLC–Commissioner
of Labor) (134 AD3d at 1217-1218), claimant was free to reject
referrals or to discontinue services for a child, established her
own schedule for providing therapy services, conducted therapy in
the child's home, daycare or school, and provided services
pursuant to lesson plans that she devised without input from the
agency. Claimant paid her own expenses and professional
liability insurance, obtained all necessary licensing and
certifications, did not receive any benefits, was allowed to
provide services to others provided that they are not agency
clients, and was not provided equipment or training by the
agency. The various reports, letters to parents and billing
forms supplied on the agency's website for providers' use, and
submitted by claimant through the agency's website, were required
by the clients and state agencies that regulated their content
(see id. at 1218). The agency did review claimant's reports but,
while it occasionally suggested stylistic edits before submitting
them on agency letterhead to clients, no evidence was submitted
that the agency made any substantive changes to them. The agency
further conducted an annual review of claimant and sometimes
offered feedback, but such was required by the clients as part of
their mandated program review.
The bulk of the practices, policies and procedures
suggestive of the agency's control over claimant were primarily
mandated by law, in other words, and such is insufficient to
establish an employment relationship by itself (see id. at 1217;
Matter of Cohen [Just Energy Mktg. Corp.–Commissioner of Labor],
117 AD3d 1112, 1112-1113 [2014], lv dismissed 24 NY3d 928 [2014];
Matter of Choto v Consolidated Lbr. Transp., Inc., 82 AD3d 1369,
1369-1370 [2011]). The record reflects a degree of incidental
control by the agency over claimant, at best, and substantial
evidence is therefore lacking to establish that the agency
exercised overall control over any important aspect of claimant's
speech therapy services so as to establish an employer-employee
relationship (see Matter of Wright [Mid Is. Therapy Assoc. LLC–
Commissioner of Labor], 134 AD3d at 1217-1218; Matter of Jean-
Pierre [Queens Perioperative Med. Assoc. PLLC–Commissioner of
Labor], 119 AD3d 1206, 1207-1208 [2014]; cf. Matter of Harold
[Leonard's Transp.–Commissioner of Labor], 133 AD3d 1069, 1070-
-4- 520940
1071 [2015], lv dismissed 26 NY3d 1136 [2016]).
The agency's remaining contentions are academic in light of
the foregoing.
McCarthy, J.P., Garry, Egan Jr. and Aarons, JJ., concur.
ORDERED that the decisions filed July 22, 2014 are
reversed, without costs, and matter remitted to the Unemployment
Insurance Appeal Board for further proceedings not inconsistent
with this Court's decision.
ORDERED that the decisions filed October 7, 2014 are
affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court