                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 10, 2016                     520644
________________________________

In the Matter of the Claim of
   SYDNEE WAGGONEER,
                    Respondent.

PRESTON LEASING CORPORATION,                 MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:    January 13, 2016

Before:    Peters, P.J., Garry, Egan Jr., Rose and Clark, JJ.

                              __________


      Ganz Wolkenbreit & Siegfeld LLP, Albany (Matthew M. Zapala
of counsel), for appellant.

      Samuel D. Castellino, Big Flats, for Sydnee Waggoneer,
respondent.

      Eric T. Schneiderman, Attorney General, New York City (Mary
Hughes of counsel), for Commissioner of Labor, respondent.

                              __________


Rose, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed August 15, 2014, which ruled, among other
things, that Preston Leasing Corporation was liable for
additional unemployment insurance contributions on remuneration
paid to claimant and others similarly situated.

      Preston Leasing Corporation provides localized promotional
marketing services for goods and products manufactured by its
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clients in the cosmetics and alcohol industries. Claimant, as a
promotional sales model who provided services to Preston,
distributed samples of the clients' products and free merchandise
featuring those clients' logos or emblems. When claimant's work
at Preston came to an end, she filed an application for
unemployment insurance benefits, and the Department of Labor
determined that claimant was an employee entitled to benefits and
that Preston was liable for additional contributions on
remuneration paid to claimant and others similarly employed.
Following a hearing, an Administrative Law Judge sustained those
determinations and, upon administrative appeal, the Unemployment
Insurance Appeal Board affirmed. Preston now appeals.

      We affirm. "Whether an employment relationship exists
within the meaning of the unemployment insurance law is a
question of fact, no one factor is determinative and the
determination of the . . . [B]oard, if supported by substantial
evidence on the record as a whole, is beyond further judicial
review even though there is evidence in the record that would
have supported a contrary conclusion" (Matter of Isaacs [Speedy
Media Assoc., LLC—Commissioner of Labor], 125 AD3d 1077, 1078
[2015] [internal quotation marks and citations omitted]; see
Matter of Viau [New York State Off. of Ct. Admin.—Commissioner of
Labor], 125 AD3d 1223, 1224-1225 [2015]; Matter of Ruano [Legal
Interpreting Servs., Inc.—Commissioner of Labor], 118 AD3d 1088,
1088 [2014], lv dismissed 24 NY3d 1039 [2014]). "An employer-
employee relationship exists when the evidence shows that the
employer exercises control over the results produced or the means
used to achieve the results [although] control over the means is
the more important factor to be considered" (Matter of Empire
State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15
NY3d 433, 437 [2010] [internal quotation marks and citations
omitted]; accord Matter of Isaacs [Speedy Media Assoc., LLC—
Commissioner of Labor], 125 AD3d at 1078).

      Here, Preston directed potential promotional sales models
to fill out an application and to provide references. Preston
established the pay rates, paid claimant directly regardless of
whether a client paid Preston and, at times, reimbursed claimant
for certain travel or incidental expenses. Preston determined
the time, date and location of the promotional events, as well as
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the particular products that claimant would be required to
distribute at the events (see Matter of North [Young People's
Chorus of N.Y.—Commissioner of Labor], 133 AD3d 1071, 1072
[2015]). Prior to a promotional event, Preston's managers
instructed claimant to dress appropriately (see id.) and not to
distribute products at the events that were not being promoted.
The managers also explained what was expected of her at the event
and informed her of what she should say at the events about the
clients' products. If claimant could not report for a scheduled
event or complete her shift, she was expected to contact a
manager at Preston. Following an event, she was expected to fill
out a Preston "recap form" summarizing her time spent at and
information about the event, and she was required to submit the
form to a manager at Preston. While claimant could and did work
for other companies, she did not maintain her own business for
promotional sales marketing. On occasion, Preston would contact
its clients to review and critique claimant's work at the
promotional events, and Preston directly handled clients'
complaints (see Matter of Chopik [Newman—Hartnett], 145 AD2d 747,
749-750 [1988]; see also Matter of North [Young People's Chorus
of N.Y.—Commissioner of Labor], 133 AD3d at 1072). Accordingly,
we conclude that there is substantial evidence to support the
Board's finding of an employer-employee relationship (see Matter
of Caufield-Ori [Blumberg–Sweeney], 233 AD2d 558, 559 [1996], lv
dismissed 89 NY2d 982 [1997]; Matter of McDonald/Richards, Inc.
[Sweeney], 232 AD2d 916, 917 [1996], lv denied 89 NY2d 806
[1997]; Matter of Horn [Hudacs], 201 AD2d 816, 816-817 [1994];
Matter of Horne [Colonia, Inc.–Hudacs], 188 AD2d 922, 922
[1992]).

     Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur.
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ORDERED that the decisions are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
