                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 3, 2015                   519637
________________________________

In the Matter of the Claim of
   MEGAN L. MORRIS,
                    Respondent.

SOURCE INTERLINK MEDIA, LLC,                MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   August 20, 2015

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

                             __________


      Fox Rothschild LLP, Lawrenceville, New Jersey (Wayne E.
Pinkstone, admitted pro hac vice), for appellant.

      Michelle I. Rosien, Philmont, for Megan L. Morris,
respondent.

                             __________


McCarthy, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed December 31, 2013, which ruled that Source
Interlink Media, LLC is liable for unemployment insurance
contributions on remuneration paid to claimant and others
similarly situated.

      Claimant was employed as marketing director for Power &
Motoryacht until her employment ended in November 2007. Shortly
thereafter, she entered into a consulting agreement with Source
Interlink Media, LLC (hereinafter SIM), doing business as Power &
Motoryacht. When that employment ended, claimant applied for
                              -2-                519637

unemployment insurance benefits. The Department of Labor found
that an employer-employee relationship existed between claimant
and SIM, and that SIM was therefore liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated. SIM objected, arguing that claimant
was not an employee but an independent contractor or,
alternatively, that Power & Motoryacht was claimant's employer.
Following a hearing, an Administrative Law Judge upheld the
Department's determination. The Unemployment Insurance Appeal
Board affirmed and SIM now appeals.

      We affirm. "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
John Lack Assoc., LLC [Commissioner of Labor], 112 AD3d 1042,
1043 [2013] [citations omitted]; see Matter of Concourse
Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]). "While
no single factor is determinative, control over the results
produced or the means used to achieve those results are pertinent
considerations, with the latter being more important" (Matter of
Hunter [Gannett Co., Inc.–Commissioner of Labor], 125 AD3d 1166,
1167 [2015] [internal quotation marks and citations omitted]; see
Matter of Empire State Towing & Recovery Assn., Inc.
[Commissioner of Labor], 15 NY3d 433, 437 [2010]).

      Here, the consulting agreement indicates that SIM retained
the services of claimant and set her hourly rate of pay.
Further, claimant's wages were reported on an IRS 1099 tax form
with SIM identified as the wage payer. Although claimant
generally worked from home, she was required to work at Power &
Motoryacht's office every Friday from 9:00 a.m. to 5:00 p.m. On
Fridays, she was provided a work space, computer, telephone and
office supplies. If claimant was going to be late or absent, she
was expected to inform an executive assistant at the office. She
planned annual meetings, parties and boat shows and was
reimbursed for her travel expenses. Her other duties included
writing press releases, but she could not distribute the releases
until her supervisor had reviewed and edited them. If claimant
missed a deadline to complete an assignment, her supervisor could
terminate the consulting agreement. Considering the foregoing,
substantial evidence supports the Board's decisions that an
                              -3-                  519637

employer-employee relationship existed here and that SIM is the
employer liable for unemployment insurance contributions on
remuneration paid to claimant and others similarly situated,
despite evidence in the record that could support a contrary
result (see Matter of Guidotti [Swissport USA, Inc.–Commissioner
of Labor], 119 AD3d 1265, 1266 [2014]; Matter of Joyce [Coface N.
Am. Ins. Co.–Commissioner of Labor], 116 AD3d 1132, 1134-1135
[2014]).

     Lahtinen, J.P., Garry and Egan Jr., JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
