                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 28, 2016                    521422
________________________________

In the Matter of the Claim of
   WILLIAM J. DWYER,
                    Respondent.

NASSAU REGIONAL OFF-TRACK                   MEMORANDUM AND ORDER
   BETTING CORP.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   March 23, 2016

Before:   Peters, P.J., Lahtinen, Rose, Lynch and Aarons, JJ.

                             __________


      Berkman, Henoch, Peterson, Peddy & Fenchel, PC, Garden City
(Daniel J. Evers of counsel), for appellant.

      Christopher Hammond, Cooperstown, for William J. Dwyer,
respondent.

                             __________


Lynch, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed September 19, 2014, which ruled, among other
things, that Nassau Regional Off-Track Betting Corp. was liable
for unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.

      Claimant, a retired police officer, worked as a security
consultant at a facility known as the Race Palace operated by the
Nassau Regional Off-Track Betting Corp. (hereinafter OTB). The
Race Palace is a 60,000-square foot teletheater that comprises a
                              -2-                521422

substantial part of OTB's business and handles a significant
amount of cash. OTB retained the security consultants to patrol
the facility in an undercover manner, monitor security cameras
and interact with patrons during the busiest hours. After
claimant stopped working at the Race Palace, he filed a claim for
unemployment insurance benefits. Thereafter, the Department of
Labor found that claimant and other similarly situated security
consultants were employees of OTB and ruled that it was liable
for unemployment insurance contributions based on remuneration
paid to these individuals. This determination was upheld by an
Administrative Law Judge following a hearing. The Unemployment
Insurance Appeal Board subsequently affirmed the Administrative
Law Judge's decisions and OTB now appeals.

      We affirm. It is well settled that the existence of an
employment relationship is a factual issue for the Board to
resolve and its decision will be upheld if supported by
substantial evidence (see Matter of Concourse Ophthalmology
Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Fatone
[Addison St. Spa LLC–Commissioner of Labor], 133 AD3d 1074, 1075
[2015]). Although no single factor is determinative, the
relevant inquiry is whether the purported employer exercised
control over the results produced or the means used to produce
those results, with control over the latter being the more
important factor (see Matter of Empire State Towing & Recovery
Assn. Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010];
Matter of Harold [Leonard's Transp.–Commissioner of Labor]. 133
AD3d 1069, 1070 [2015], lv dismissed 26 NY3d 1136 [2016]).

      Here, claimant and the other security consultants provided
services exclusively at the location of the Race Palace and
claimant's work schedule was established through consultation
with another security consultant. He was compensated at a
negotiated hourly rate of pay that was set forth in an
independent contractor agreement and was required to submit claim
forms and activity reports detailing his services within
established time frames in order to receive payment from OTB. In
addition, he was reimbursed by OTB for certain preapproved
expenses and was required to keep all information regarding his
services strictly confidential. In view of the foregoing,
substantial evidence supports the Board's finding that OTB
                              -3-                  521422

retained the requisite control necessary to establish the
existence of an employment relationship (see generally Matter of
Ramirez [Propoint Graphics LLC–Commissioner of Labor], 127 AD3d
1295, 1296-1297 [2015]; Matter of Jaeger [Vendor Control Serv.
Inc.–Commissioner of Labor], 106 AD3d 1360, 1360-1361 [2013]).
Although the written agreement designated claimant as an
independent contractor, it is not dispositive of claimant's
employment status (see Matter of Eckert [Fox Moblie Distrib.
LLC–Commissioner of Labor], 133 AD3d 1075, 1076 [2015]; Matter of
Stewart [AML Partners, LLC–Commissioner of Labor], 118 AD3d 1198,
1199 [2014]).

     Peters, P.J., Lahtinen, Rose and Aarons, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
