                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 6, 2016                   520354
________________________________

In the Matter of the Claim of
   MONIKA M. JACHYM,
                    Respondent.

TODAY'S CLEANING SERVICE,
   Doing Business as TODAY'S                MEMORANDUM AND ORDER
   MAID SERVICE,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   September 16, 2016

Before:   Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.

                             __________


     Mark S. Goldstein, New York City, for appellant.

      Samuel D. Castellino, Big Flats, for Monika M. Jachym,
respondent.

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

                             __________


Clark, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed April 14, 2014, which ruled that Today's
Cleaning Service is liable for unemployment insurance
contributions on remuneration paid to claimant and others
similarly situated.
                              -2-                520354

      Today's Cleaning Service (hereinafter TCS) is a referral
agency engaged in the business of providing housekeepers, such as
claimant, from its registry or database to perform cleaning
services for its clients. After her business relationship with
TCS concluded in 2011, claimant applied for unemployment
insurance benefits. The Department of Labor issued an initial
determination finding that claimant was an employee of TCS and
that TCS was liable for unemployment insurance contributions
based on remuneration paid to claimant and others similarly
situated. Following a hearing, an Administrative Law Judge
sustained the Department's determination. Upon administrative
appeal, the Unemployment Insurance Appeal Board agreed,
determining that an employer-employee relationship existed
between TCS and claimant and that TCS was liable for
contributions based on remuneration paid to claimant and others
similarly situated. TCS 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], lv dismissed 27 NY3d 1060 [2016]). 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 achieve 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 Stewart [American Inst. for
Stuttering—Commissioner of Labor], 137 AD3d 1395, 1395 [2016]).

      The record evidence establishes that TCS solicited
applicants through online advertisements and through its website
— which claimant used to complete an application and submit her
résumé — and screened the applications that it received (see
Matter of Lobban [Precinct Sec. & Investigations, Inc.—
Commissioner of Labor], 131 AD3d 1294, 1294-1295 [2015]; Matter
of Ivy League Tutoring Connection, Inc. [Commissioner of Labor],
119 AD3d 1260, 1260-1261 [2014]). TCS's hiring process also
required claimant to complete several jobs on a voluntary and
                              -3-                520354

trial basis, during which she would work alongside an experienced
housekeeper who would report back on claimant's work and ability
to effectively provide services for TCS's clients. The initial
rate of pay was established and set by TCS, and TCS paid claimant
by check. TCS informed claimant of her scheduled jobs — which
claimant was required to promptly accept or reject — and the
nature and scope of services required for each. During the
performance of those cleaning services, TCS required claimant to
wear an identification badge reflecting her affiliation with TCS
(see Matter of Mitchum [Medifleet, Inc.—Commissioner of Labor],
133 AD3d 1156, 1157 [2015]; Matter of Cohen [Just Energy Mktg.
Corp.— Commissioner of Labor], 117 AD3d 1112, 1113 [2014], lv
dismissed 24 NY3d 928 [2014]). TCS also provided its clients
with "scoreboards" that the clients could use to evaluate the
services provided and inform TCS of a housekeeper's performance,
which TCS could consider when assigning future jobs. If claimant
was unable to provide an agreed-upon service or report for a job,
claimant was required to immediately inform TCS, and TCS would
secure a substitute (see Matter of Mitchum [Medifleet, Inc.—
Commissioner of Labor], 133 AD3d at 1157).

      Although claimant was allowed to keep any existing clients
upon being hired by TCS and could work for other employers, the
written referral agreement governing TCS's relationship with each
housekeeper prohibited solicitation of TCS's clients for one year
after the time period encompassed by the agreement and specified
that TCS's client information remained the private property of
TCS (see Matter of Ivy League Tutoring Connection, Inc.
[Commissioner of Labor], 119 AD3d at 1261; Matter of Cohen [Just
Energy Mktg. Corp.—Commissioner of Labor], 117 AD3d at 1113). In
our view, substantial evidence supports the Board's decision,
despite evidence in the record that could support a contrary
result (see Matter of Viniotis [Town of Islip—Commissioner of
Labor], 280 AD2d 731, 731-732 [2001]; cf. Matter of Dwightmoore
[Fanfair—Commissioner of Labor], 126 AD3d 1221, 1222 [2015]; see
also Matter of Klotz [Blue Perimeter, Inc.—Commissioner of
Labor], 127 AD3d 1459, 1460 [2015]; Matter of Ivy League Tutoring
Connection, Inc. [Commissioner of Labor], 119 AD3d at 1261;
Matter of Lamar [Eden Tech., Inc.—Commissioner of Labor], 109
AD3d 1038, 1039 [2013]).
                              -4-                  520354

      To the extent that TCS's procedural contentions are
properly before us and relevant to the question of whether an
employment relationship existed, TCS has, in the absence of a
showing of good cause for an adjournment, failed to demonstrate
that the Administrative Law Judge's denial of its requests for an
adjournment of the hearing was improper or the product of
partiality or bias (see 12 NYCRR 461.6 [a]; see also Matter of
Palmer [Rescue Mission Alliance of Syracuse–Commissioner of
Labor], 273 AD2d 525, 526 [2000]). Nor was TCS denied the
opportunity to cross-examine any witnesses who testified or to
present testimony and produce evidence in support of its position
at the hearing (see 12 NYCRR 461.4 [c]). The remaining arguments
advanced by TCS, to the extent not specifically addressed herein,
have been examined and found to be without merit.

     Peters, P.J., McCarthy, Garry and Aarons, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
