                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 19, 2017                    522773
________________________________

In the Matter of the Claim of
   NIVA F. WILLIAMS,
                    Respondent.

SUMMIT HEALTH, INC.,                         MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:    December 13, 2016

Before:    Peters, P.J., Garry, Rose, Devine and Mulvey, JJ.

                              __________


      DLA Piper, LLP, New York City (Erin Carney D'Angelo of
counsel), for appellant.

      David E. Woodin, Catskill, for Niva F. Williams,
respondent.

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

                              __________


Rose, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed May 28, 2015, which ruled, among other
things, that Summit Health, Inc. was liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.

      Claimant, a licensed phlebotomist, worked as a biometric
screener for Summit Health, Inc., a health and wellness company
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that provides health screenings and flu immunization to employees
of its corporate clients at clinics held at the clients'
workplaces. The Unemployment Insurance Appeal Board determined,
among other things, that claimant was an employee of Summit and
that Summit was liable for unemployment insurance contributions
on remuneration paid to claimant and others similarly situated.
Summit appeals.

      We affirm. "Whether an employee-employer relationship
exists is a factual question to be resolved by the Board and we
will not disturb its determination when it is supported by
substantial evidence in the record" (Matter of Jennings [American
Delivery Solution, Inc.–Commissioner of Labor], 125 AD3d 1152,
1152 [2015] [internal quotation marks and citations omitted];
accord Matter of Voisin [Dynamex Operations E., Inc.–Commissioner
of Labor], 134 AD3d 1186, 1187 [2015]). "[W]here, as here, the
work of medical professionals is involved, the pertinent inquiry
is whether the purported employer retained overall control over
the work performed" (Matter of Mackey [Prometric Inc.–
Commissioner of Labor], 120 AD3d 1493, 1494 [2014]; accord Matter
of Lawlor [ExamOne World Wide Inc.–Commissioner of Labor], 130
AD3d 1345, 1346 [2015]). Further, "an organization which screens
the services of professionals, pays them at a set rate and then
offers their services to clients exercises sufficient control to
create an employment relationship" (Matter of Kimberg [Hudacs],
188 AD2d 781, 781 [1992]).

      Substantial evidence supports the Board's determination
that Summit retained sufficient overall control over the work
performed by claimant to establish an employment relationship.
The record reflects that Summit posted job openings for biometric
screeners on its website, interviewed applicants and screened
their experience and license credentials. Summit scheduled the
clinics with its clients and the clients determined what services
were needed. Summit then posted the clinic dates, and screeners
could sign up to work at the clinics based upon their
availability. If the screeners could not report to work after
signing up for a clinic, they notified Summit, which would then
find a replacement. Screeners were paid an hourly rate by Summit
and were reimbursed for certain travel and other expenses.
Summit provided equipment and supplies for the clinics and
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claimant was required to abide by a dress code and wear a Summit
identification badge. In sum, we conclude that the facts in this
case are materially indistinguishable from two prior cases in
which we concluded that Summit was the employer of its certified
medical assistants (see Matter of Goddard [Summit Health,
Inc.–Commissioner of Labor], 118 AD3d 1200, 1201 [2014], lv
dismissed 24 NY3d 975 [2014]) and its health examiners (see
Matter of Armbruster [Summit Health, Inc.–Commissioner of Labor],
138 AD3d 1367, 1369 [2016], lv dismissed 28 NY3d 946 [2016]).
Lastly, the Board did not err in ruling that Summit is liable for
contributions on remuneration paid to others determined to be
similarly situated to claimant (see Labor Law § 620 [1]).

     Peters, P.J., Garry, Devine and Mulvey, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
