                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: January 19, 2017                     522440
________________________________

In the Matter of the Claim of
   PATRICK DESRAVINES,
                    Respondent.

LOGIC CORPORATION,                            MEMORANDUM AND ORDER
                      Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   December 13, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

                               __________


      Mintz & Gold, LLP, New York City (Ryan W. Lawler of
counsel), for appellant.

      John Ferrara, Monticello, for Patrick Desravines,
respondent.

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

                               __________


Lynch, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed April 10, 2015, which ruled, among other
things, that Logic Corporation was liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.

      Logic Corporation is a recruitment and placement agency
that assists its clients in retaining individuals to perform work
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for the clients based upon job descriptions and skill
requirements specified by the client, primarily information
technology (hereinafter IT) services. Claimant was hired in
January 2012 to perform IT and computer services as a desktop
engineer for OSP Group, a client of Logic. After OSP terminated
claimant, claimant applied for unemployment insurance benefits.
The Department of Labor determined that he was an employee of
Logic entitled to such benefits, and that Logic was liable for
additional contributions based upon remuneration paid to claimant
and others similarly situated. Following hearings,1 an
Administrative Law Judge concluded that claimant was an
independent contractor and not an employee of Logic and overruled
the initial determination. On claimant's appeal, the
Unemployment Insurance Appeal Board reversed and upheld the
initial determination, finding that claimant was an employee of
Logic, and that Logic was liable for additional unemployment
insurance contributions based upon remuneration paid to claimant
and others similarly situated. Logic now appeals.

      "Whether an employer-employee relationship exists is a
factual determination for the Board, and its decision will be
upheld if supported by substantial evidence" (Matter of Corrente
[Select Med. Corp., Inc.–Commissioner of Labor], 139 AD3d 1283,
1284 [2016] [internal quotation marks and citations omitted]).
"An employer-employee relationship ordinarily exists where the
putative employer exercises control over the results produced or
the means used to achieve the results, with control over the
latter of more importance," although "incidental control over the
results produced without further indicia of control over the
means employed to achieve the results will not constitute
substantial evidence of an employer-employee relationship"
(Matter of Eiber Translations, Inc. [Commissioner of Labor], 143
AD3d 1080, 1081 [2016] [internal quotation marks and citation
omitted]).



    1
        After initial hearings and determinations, the
Unemployment Insurance Appeal Board remanded the matter for
further hearings to develop the record, which were thereafter
held.
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      Here, claimant responded to an advertisement placed by
Logic on a recruitment website that contained a job description
and information provided by OSP. Claimant and other applicants
submitted resumes to Logic; upon review, Logic forwarded multiple
resumes that met OSP's needs to OSP for selection. OSP
interviewed the applicants of its choice and, after an interview,
OSP offered claimant an IT position as a desktop engineer.
Claimant was paid an hourly rate set by OSP and agreed to by
claimant, with some negotiation. Claimant worked full time at
OSP's offices on a schedule set by OSP, with work assigned and
directed by OSP managers, and an OSP supervisor approved his time
sheets, which were submitted along with an invoice to Logic for
payment to claimant. Logic thereafter billed OSP for claimant's
services and its fee, but did not pay claimant unless OSP paid
Logic. Logic did not require claimant to attend meetings or
submit reports and provided no training or supplies. Logic did
not hire or fire claimant, did not supervise him or evaluate his
work and did not restrict him from working for OSP's competitors.
Logic essentially "acted as little more than an intermediary"
between OSP and claimant (Matter of Eiber Translations, Inc.
[Commissioner of Labor], 143 AD3d at 1082). Contrary to the
Board's finding, Logic did not enter into an independent
contractor agreement with claimant. Rather, the record reflects
that while Logic sent claimant a written independent contractor
agreement that contained no-compete and no-solicitation clauses,
among other provisions, claimant testified that the signature on
the document was not his and the agreement was never signed by
Logic.

      Given the foregoing, we find that the record fails to
contain substantial evidence to support the Board's conclusion
that Logic exercised sufficient supervision and control over
claimant to demonstrate an employer-employee relationship, and
that any control retained by Logic was, at most, incidental (see
Matter of Yoga Vida NYC, Inc. [Commissioner of Labor], 28 NY3d
1013, 1015 [2016]; Matter of Eiber Translations, Inc.
[Commissioner of Labor], 143 AD3d at 1082). Even assuming,
without deciding, that claimant's IT position was a professional
one, as the Board concluded, we similarly find that the record
lacks substantial evidence that Logic exercised "overall control
. . . over important aspects of the services performed other than
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results or means" (Matter of Empire State Towing & Recovery
Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437-438 [2010]
[internal quotation marks and citation omitted]; accord Matter of
Crahan [Progress Rail Servs. Corp.–Commissioner of Labor], 116
AD3d 1277, 1278 [2014]). The unrefuted testimony of claimant and
Logic's principal is that, aside from recruiting claimant and
paying him, Logic had little knowledge of the services that he
provided to OSP or his job duties, had no control over his
assignments or work performance and did not evaluate or supervise
his work.

     McCarthy, J.P., Egan Jr., Clark and Aarons, JJ., concur.



      ORDERED that the decisions are reversed, without costs, and
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
