State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 29, 2016 521818
________________________________
In the Matter of the Claim of
LEONARD COLE,
Respondent.
NIAGARA FALLS HOUSING
AUTHORITY, MEMORANDUM AND ORDER
Appellant.
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: September 8, 2016
Before: Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.
__________
Hodgson Russ, LLP, Buffalo (Melanie J. Beardsley of
counsel), for appellant.
Thomas F. Garner, Middleburgh, for Leonard Cole,
respondent.
__________
Garry, J.P.
Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed December 3, 2014, which ruled, among other
things, that Niagara Falls Housing Authority is liable for
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.
The Niagara Falls Housing Authority (hereinafter Housing
Authority) is a nonprofit governmental agency that provides
affordable housing for senior citizens and low-income families.
To facilitate its operations, the Housing Authority created
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People and Possibilities, a nonprofit organization, to receive
grants and to provide services to the community. To that end,
claimant was retained by the Housing Authority as an outreach
worker — and, later, as a field supervisor — for the Housing
Authority's SNUG program, a program that sought to reduce
community violence in high-violence areas within Niagara Falls.
In 2012, after the grant money had been depleted and his work
with the Housing Authority concluded, claimant applied for
unemployment insurance benefits. The Department of Labor issued
an initial determination finding that claimant was an employee of
the Housing Authority and that the Housing Authority was liable
for unemployment insurance contributions based on remuneration
paid to claimant and others similarly situated. Following a
hearing, an Administrative Law Judge sustained the Department's
determination. Upon administrative appeal, the Unemployment
Insurance Appeal Board agreed, determining that an
employer-employee relationship existed between the Housing
Authority and claimant and that the Housing Authority was liable
for contributions based on remuneration paid to claimant and
others similarly situated. The Housing Authority now appeals.
We affirm. It is well settled that the existence of an
employment relationship is a factual issue for the Board to
resolve and its decision will be upheld if supported by
substantial evidence (see Matter of Concourse Ophthalmology
Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Fatone
[Addison St. Spa, LLC–Commissioner of Labor], 133 AD3d 1074, 1074
[2015], lv dismissed 27 NY3d 1060 [2016]). Although no single
factor is determinative, "[t]he relevant inquiry is whether the
purported employer exercised control over the results produced or
the means used to achieve those results, with control over the
latter being the more important factor" (Matter of Stewart
[American Inst. for Stuttering—Commissioner of Labor], 137 AD3d
1395, 1395 [2016]; see Matter of Empire State Towing & Recovery
Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]).
Contrary to the Housing Authority's contention that it only
exercised incidental control over claimant, the record evidence
establishes that People and Possibilities was created so that the
Housing Authority could receive donations and grant money, that
it acted as a subsidiary and agent of the Housing Authority and
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that the Housing Authority remained the fiscal and administrative
agent for People and Possibilities's SNUG program. Prior to
being hired, claimant filled out an application and was required
to submit a résumé, after which he was interviewed by a panel,
which included two officials from the Housing Authority, that
determined to hire him (see Matter of Lobban [Precinct Sec. &
Investigations, Inc.—Commissioner of Labor], 131 AD3d 1294, 1294-
1295 [2015]; Matter of Ivy League Tutoring Connection, Inc.
[Commissioner of Labor], 119 AD3d 1260, 1260-1261 [2014]). Upon
being hired, claimant was required to attend training (see Matter
of Mitchum [Medifleet, Inc.—Commissioner of Labor], 133 AD3d
1156, 1157 [2015]; Matter of Cohen [Just Energy Mktg. Corp.—
Commissioner of Labor], 117 AD3d 1112, 1113 [2014], lv dismissed
24 NY3d 928 [2014]). The rate of pay for claimant, who was
required to work 35 hours per week, was not subject to
negotiation (see Matter of Klotz [Blue Perimeter, Inc.—
Commissioner of Labor], 127 AD3d 1459, 1460 [2015]), and claimant
was required to fill out and submit weekly time sheets that would
have to be approved and signed by his supervisor before receiving
remuneration from the Housing Authority (see Matter of Lamar
[Eden Tech., Inc.—Commissioner of Labor], 109 AD3d 1038, 1039
[2013]; Matter of Ray Catena Corp. [Commissioner of Labor], 274
AD2d 819, 820 [2000]). While claimant did not receive benefits,
he was reimbursed for expenses related to the costs of a cell
phone, gas, tolls, food and office supplies (see e.g. Matter of
Armbruster [Summit Health, Inc.—Commissioner of Labor], 138 AD3d
1367, 1368 [2016], lv dismissed ___ NY3d ___ [Sept. 13, 2016]),
and the Housing Authority also provided claimant with office
space to use in one of its buildings. While performing his
duties as an outreach worker, claimant was required to wear a
jacket or shirt, as well as a hat, identifying him as part of the
SNUG program (see Matter of Mitchum [Medifleet, Inc.—Commissioner
of Labor], 133 AD3d at 1157; Matter of Cohen [Just Energy Mktg.
Corp.—Commissioner of Labor], 117 AD3d at 1113) and was required
to maintain a certain number of clients and to meet with those
clients. Claimant was also not allowed to subcontract his work
or employ a substitute to perform his work (see Matter of Ritch
[Island Tutoring Ctr., Inc.–Commissioner of Labor], 139 AD3d
1151, 1152 [2016]), and his work in the community was reviewed
periodically and subject to oversight by his supervisors (see
e.g. Matter of Waggoneer [Preston Leasing Corp.—Commissioner of
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Labor], 137 AD3d 1380, 1381 [2016]). Considering the foregoing
evidence, the Board's finding that an employer-employee
relationship existed between claimant and the Housing Authority
is supported by substantial evidence and will not be disturbed.
Egan Jr., Lynch, Rose and Aarons, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court