                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 25, 2014                   518147
________________________________

In the Matter of the Claim of
   THOMAS J. DUNO,
                    Respondent.

ANTHONY STONE INVESTIGATIVE &
   SECURITY SERVICES, INC.,                 MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   McCarthy, J.P., Garry, Rose, Egan Jr. and Lynch, JJ.

                             __________


     Rudolph Silas, New York City, for appellant.

     Francis J. Smith, Albany, for Thomas J. Duno, respondent.

                             __________


      Appeal from two decisions of the Unemployment Insurance
Appeal Board, filed April 3, 2013, which ruled that Anthony Stone
Investigative & Security Services, Inc. is liable for additional
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.

      Claimant worked as a security guard for Anthony Stone
Investigative & Security Services, Inc. (hereinafter ASISS) for
approximately 10 months, after which he applied for unemployment
insurance benefits. Following a hearing, an Administrative Law
Judge determined claimant to be an employee of ASISS and found it
liable for additional unemployment insurance contributions on
remuneration paid to claimant and other similar situated security
guards. The Unemployment Insurance Appeal Board affirmed that
                              -2-                518147

determination and ASISS now appeals.

      We affirm. Whether there exists an employment relationship
is a factual issue for resolution by the Board and its decision
will not be disturbed when supported by substantial evidence (see
Matter of Cohen [Just Energy Mktg. Corp.— Commissioner of Labor],
117 AD3d 1112, 1112 [2014], lv dismissed ___ NY3d ___ [Sept. 4,
2014]; Matter of Crahan [Progress Rail Servs. Corp.—Commissioner
of Labor], 116 AD3d 1277, 1277-1278 [2014]). In making such a
determination, the Board considers whether the putative employer
exercised control over the results produced or the means used to
achieve those results, with the means being the more important
consideration (see Matter of McCollum [Fire Is. Union Free School
Dist.–Commissioner of Labor], 118 AD3d 1203, 1204 [2014]; Matter
of Joyce [Coface N. Am. Ins. Co.–Commissioner of Labor], 116 AD3d
1132, 1134 [2014]). Here, the testimony of both claimant and
Anthony Stone, the principal of ASISS, established that claimant
completed an application for employment and was hired at a rate
of pay established exclusively by Stone. ASISS assigned claimant
to a specific location, established his hours of work and covered
him under its workers' compensation insurance. Furthermore, it
provided him with an employee code of conduct and required him to
call in to an automated system at the beginning and end of each
shift, to sign a time sheet and to submit incident reports. The
client was not informed that claimant was an independent
contractor, claimant was required to request time off two weeks
in advance and ASISS would find a replacement if claimant was
unavailable for his shift. Claimant was required to adhere to
the company dress code by wearing a dark suit and tie, as well as
a company lapel pin, while on duty. Furthermore, any complaints
about claimant's performance would be handled by ASISS and
claimant would receive his pay even if the client did not pay
ASISS. Accordingly, while there was other evidence in the record
suggestive of an independent contractor relationship, we find
that substantial evidence supports the Board's determination that
claimant was an employee (see Matter of Anwer [Exclusive
Fragrance & Cosmetics, Inc.—Commissioner of Labor], 114 AD3d
1114, 1115 [2014]; Matter of Lamar [Eden Tech., Inc.—Commissioner
of Labor], 109 AD3d 1038, 1039 [2013]).
                              -3-                  518147

      McCarthy, J.P., Garry, Rose, Egan Jr. and Lynch, JJ.,
concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
