                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 24, 2014                     517997
________________________________

In the Matter of the Claim of
   ULTIMO P. GUIDOTTI,
                    Respondent.

SWISSPORT USA, INC.,                        MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   June 9, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.

                             __________


      Sedgwick LLP, New York City (J. Gregory Lahr of counsel),
for appellant.

      James W. Cooper, Warrensburg, for Ultimo P. Guidotti,
respondent.

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

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed January 25, 2013, which ruled that Swissport USA,
Inc. was liable for additional unemployment insurance
contributions based upon remuneration paid to claimant and others
similarly situated.

      Claimant worked as an operations manager for Alitalia, Inc.
until 2007, when his position was eliminated as part of a
company-wide staff reduction. He thereafter performed the same
work but was paid by Swissport USA, Inc., a company that
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performed ground handling work for Alitalia and was asked to
assist in "hid[ing] [his] presence within Alitalia." Claimant's
work ended when Alitalia declared bankruptcy in 2008, and he
thereafter applied for unemployment insurance benefits. The
Unemployment Insurance Appeal Board ruled that claimant was an
employee of Swissport and held Swissport liable for additional
unemployment insurance contributions based upon remuneration paid
to claimant and others similarly situated. Swissport now
appeals, arguing that the Board's finding of an employer-employee
relationship was in error.

      "Whether an employment relationship exists within the
meaning of the unemployment insurance law is a factual question
for the Board to resolve, and its determination in this regard —
if supported by substantial evidence in the record as a whole —
will not be disturbed" (Matter of Joyce [Coface N. Am. Ins.
Co.–Commissioner of Labor], 116 AD3d 1132, 1133-1134 [2014]
[citations omitted]; see Matter of Empire State Towing & Recovery
Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]).
Such a relationship will generally "be found to exist where the
employer exercises control over the results produced or the means
used to achieve those results, with the latter being more
important" (Matter of Columbia Artists Mgt. LLC [Commissioner of
Labor], 109 AD3d 1055, 1056 [2013]; see Matter of Empire State
Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d at
437).

      Here, claimant executed a "consultant agreement" that
required him to perform assignments given by Swissport, provided
that all work generated by him was the property of Swissport, and
prohibited him from disclosing information regarding that work
except as authorized by Swissport. Claimant worked regular hours
at an office, was required to attend meetings conducted by
Swissport, gave notice to Swissport when he traveled or took time
off, and testified that he did not feel free to accept outside
work. He was further reimbursed for his travel expenses by
Swissport, and received compensation to cover his health
insurance premiums. Lastly, while claimant continued to perform
his duties for Alitalia, he confirmed in the course of his
testimony that he viewed that work as being an assignment for
Swissport. Thus, notwithstanding evidence to the contrary,
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substantial evidence in the record supports the Board's decision
(see Matter of Joyce [Coface N. Am. Ins. Co.–Commissioner of
Labor], 116 AD3d at 1134-1135; Matter of Lambert [Staubach Retail
Servs. New England, LLC–Commissioner of Labor], 18 AD3d 1049,
1050-1051 [2005]).

      Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.,
concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
