concur in part and dissent in part in the following memorandum by Harvey, J. Harvey, J. (concurring in part and dissenting in part). We concur with the majority in their determination of the status of all persons performing services for the employer with the exception of the medical directors, the social services consultant and the dietitian consultant. We respectfully dissent from their determination of the status of those people.
The Unemployment Insurance Appeal Board ruled that all the individuals holding these positions were employees and not independent contractors. Whether an employment relationship exists is a factual question for the Board to determine in the first instance. Where, however, that determination is unsupported by substantial evidence in the record, it must be set aside (Matter of Watz [Equitable Life Assur. Socy.—Ross] 46 NY2d 876; Matter of Studio Theatre School Corp. [Roberts], 99 AD2d 637, 638). In reaching its determination, the Board concluded that the written contracts covering most of the individuals required certain hours to be worked periodically at a specified hourly "salary or pay”. The Board further found that the employer retained over-all responsibility for patient care. Most of the services were performed in the employer’s facility. We find the Board’s broad sweeping generalizations as to the different positions involved to be unsupported by substantial evidence in the record.
In Matter of 12 Cornelia St. (Ross) (56 NY2d 895), the Court of Appeals set forth some of the characteristics which it considered illustrative of an independent contractor rather than an employee status. The Court of Appeals noted that the fact that an individual was permitted to work the required hours on an extremely flexible basis, that he is free to engage *888in outside employment, that he is provided only limited facilities and supplies by the employer, and that initial training is either unnecessary or extremely limited in nature are factors supporting the finding of an independent contractor relationship (supra, pp 897-898; see also, Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 737). Ordinarily, individuals who are highly specialized and skilled in a particular profession are considered independent contractors, absent an actual exercise of the right of control by the employer (Matter of Studio Theatre School Corp. [Roberts], supra; see also, 3 NY Jur 2d, Agency and Independent Contractors, § 333, at 153-155). The record is void as to evidence of the actual exercise of a purported right of control.
The dietitian consultant spends only about 16 hours per month at each facility. The particular hours that he performs his contractual obligation are of his own choosing. He was employed at another institution on a full-time basis. The record establishes that the dietitian consultant operates on an independent basis without specific job instructions and serves as an expert for advising the nursing home food service staff as to compliance with State regulations. Furthermore, the dietitian consultant was permitted to subcontract out part of his duties. We therefore conclude that he is an independent contractor.
In our opinion, the medical directors are also independent contractors. They are physicians who have their own medical practices. They are paid $50 per visit and must visit the nursing home at least two hours per week. Each of the medical directors has his own private practice which was described as being very busy. They set their own schedules and carry out their obligations established by applicable regulations without any control or direction by the owners of the nursing home facilities.
Finally, we believe that the social services consultant is an independent contractor. The position requires a high level of education and skill and the individual operates independently. He works only four hours a week in each of the three nursing homes and schedules his own work hours. This individual does not provide social services to patients but merely reviews patients’ needs to determine whether the social worker in each nursing home is meeting those needs. This is done with the same minimal level of administrative control as in the case of the dietitian consultant.
In our opinion, the consultants whose duties we have described are in a most similar position to a lawyer or accoun*889tant retained by a business entity. They are retained because of their expertise and because of the lack of expertise on the part of those contracting for the services. We conclude that there was no more control over their activities than was exercised by the real estate broker over the sales persons in Matter of 12 Cornelia St. (Ross) (supra). We would therefore modify the Board’s decision in accordance with our decision and remit the matter to the Board for assessment of employer contributions consistent herewith.