                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     521465
________________________________

In the Matter of the Claim of
   JOYCE KLIMAN,
                    Respondent.

GENESEE REGION HOME CARE                    MEMORANDUM AND ORDER
   ASSOCIATION, INC., Doing
   Business as LIFETIME CARE,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   May 24, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Clark and Mulvey, JJ.

                             __________


      Bond, Schoeneck & King, PLLC, Syracuse (Daniel J. Pautz of
counsel), for appellant.

     Gordon W. Eddy, Albany, for Joyce Kliman, respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for Commissioner of Labor,
respondent.

                             __________


Clark, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed September 24, 2014, which ruled, among other
things, that Genesee Region Home Care Association, Inc. is liable
for unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.
                              -2-                521465

      CompassionNet, an affiliate of Genesee Region Home Care
Association, Inc. (hereinafter Genesee), is a non-revenue-
producing program that provides pediatric palliative home care to
support families dealing with sick and terminally-ill children.
To provide this care, CompassionNet retains the services of nurse
practitioners and oncologists, as well as individuals — such as
claimant, a licensed creative arts therapist — who specialize in
different forms of therapy, including art, music and massage
therapies. After her employment with another employer came to an
end in January 2009, claimant applied for unemployment insurance
benefits. The Department of Labor issued an initial
determination finding that claimant was an employee of Genesee
and that Genesee was liable for unemployment insurance
contributions based on remuneration paid to claimant and others
similarly situated. Ultimately, the Unemployment Insurance
Appeal Board sustained the determination of the Department of
Labor, prompting this appeal.

      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 [Board], 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 Concourse
Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; accord
Matter of Stecher Aviation Servs., Inc. [Commissioner of Labor],
131 AD3d 1289, 1290 [2015]; Matter of McAlevey [Agewell Physical
Therapy & Wellness, P.C.—Commissioner of Labor], 126 AD3d 1219,
1219-1220 [2015]). Where the provision of "professional
services" is involved, the relevant inquiry becomes whether the
purported employer retains overall control of "important aspects
of the services performed" (Matter of Concourse Ophthalmology
Assoc. [Roberts], 60 NY2d at 736; see Matter of Eray Inc.
[Commissioner of Labor], 136 AD3d 1129, 1130 [2016]). "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 Ryan [La Cruz Radiation Consultants,
Inc.–Commissioner of Labor], 138 AD3d 1324, 1325 [2016], quoting
Matter of Ivy League Tutoring Connection, Inc. [Commissioner of
                              -3-                521465

Labor], 119 AD3d 1260, 1260 [2014]; accord Matter of Encore Music
Lessons LLC [Commissioner of Labor], 128 AD3d 1313, 1315 [2015]).

      Here, the record evidence demonstrates, that while claimant
was not required to undergo any training, she submitted a résumé
and went through an interview process that was several hours in
duration. Upon being selected for placement on a panel of
therapists, claimant signed an agreement identifying her as an
independent contractor; however, that agreement required claimant
to adhere to policies established by CompassionNet and prohibited
her from employing or subcontracting another therapist in her
place without the prior written consent of CompassionNet. A
schedule attached to the agreement unilaterally established the
fees that clients would be charged for claimant's services and
the amounts that she would be reimbursed for her travel expenses,
including parking and tolls. Although claimant could decline a
particular assignment, the agreement provided that, upon being
assigned, a case manager would establish the visit frequency and
the duration and time of day that claimant would provide her
services, and required claimant to submit documentation to
CompassionNet within 72 hours of providing services and invoices
in a predetermined format at least monthly. To that end,
claimant was paid for her services regardless of whether
CompassionNet received payment from, or on behalf of, the client.
While CompassionNet required claimant to maintain her own
professional liability insurance, claimant explained that she was
never self-employed as a creative arts therapist and that she did
not provide her services for any other entity during the time
period in question. Under these circumstances, and
notwithstanding proof in the record that might support a contrary
conclusion, we find that the foregoing constitutes substantial
evidence to support the Board's decisions that Genesee, while not
directly supervising the therapeutic services that claimant
provided to clients, retained sufficient overall control over the
work performed by claimant and those similarly situated to
establish an employer-employee relationship (see Matter of Ryan
[La Cruz Radiation Consultants, Inc.–Commissioner of Labor], 138
AD3d at 1325; Matter of Goddard [Summit Health, Inc.—Commissioner
of Labor], 118 AD3d 1200, 1201 [2014], lv dismissed 24 NY3d 975
[2014]; Matter of Ortega [Neiman-Sweeney], 217 AD2d 725, 725
[1995]; Matter of Kimberg [Hudacs], 188 AD2d 781, 781 [1992]).
                        -4-                  521465

Lahtinen, J.P., McCarthy, Garry and Mulvey, JJ., concur.



ORDERED that the decisions are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
