                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 24, 2014                     517901
________________________________

In the Matter of the Claim of
   IVY LEAGUE TUTORING
   CONNECTION, INC.,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   May 29, 2014

Before:   Peters, P.J., Rose, Egan Jr., Lynch and Devine, JJ.

                             __________


      Ganz, Wolkenbreit & Siegfeld, LLP, Albany (Robert E. Ganz
of counsel), for appellant.

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

                             __________


Egan Jr., J.

      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed December 13, 2013, which assessed Ivy League
Tutoring Connection, Inc. for additional unemployment insurance
contributions.

      Ivy League Tutoring Connection, Inc. is a tutoring referral
and billing service that provides in-home tutors to clients
seeking assistance with school work and test preparation. The
individual tutors are solicited by Ivy League via postings and
advertisements on certain Internet sites. In 2012, Ivy League
was assessed for unemployment insurance contributions on behalf
of the tutors who performed services for it beginning with the
first quarter of 2009. Ivy League objected to this
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determination, contending that its tutors were independent
contractors rather than employees. Following the requested
hearing, an Administrative Law Judge found that the tutors indeed
were employees and, accordingly, upheld the initial assessment of
unemployment insurance contributions. The Unemployment Insurance
Appeal Board subsequently affirmed that decision, and Ivy League
now appeals.

      We affirm. This Court previously has held that "an
organization which screens the services of professionals, pays
them at a set rate and then offers their services to clients
exercises sufficient control to create and employment
relationship" (Matter of Lamar [Eden Tech, Inc.–Commissioner of
Labor], 109 AD3d 1038, 1039 [2013] [internal quotation marks and
citations omitted]; accord Matter of Cobrin [Telecom Consulting
Group NE Corp.–Commissioner of Labor], 91 AD3d 992, 993 [2012];
Matter of Wells [Madison Consulting, Inc.–Commissioner of Labor],
77 AD3d 993, 995 [2010]; Matter of Rubin [Freelance Advantage–
Sweeney], 236 AD2d 679, 681 [1997]). Here, there is no question
that Ivy League screened, interviewed and conducted a criminal
background check with respect to prospective tutors, paid the
tutors affiliated with it an agreed-upon hourly rate based upon
documentation submitted by the tutors1 and matched individual
clients with the tutor that it deemed best suited for that
particular client's needs. Additionally, pursuant to the terms
of the written agreement governing Ivy League's relationship with
each individual tutor, Ivy League restricted the tutor's
solicitation of Ivy League's clients – both during the period of
time encompassed by the particular contract and for three years
thereafter. Under these circumstances, the Board's finding of an
employer-employee relationship is supported by substantial
evidence (see Matter of Lamar [Eden Tech., Inc.–Commissioner of
Labor], 109 AD3d at 1039; Matter of Educaid, Inc. [Hartnett], 176
AD2d 420, 420 [1991], lv denied 79 NY2d 751 [1991]; see also
Matter of Cobrin [Telecom Consulting Group NE Corp.–Commissioner


     1
        Up until July 2012, Ivy League's tutors were required to
submit "time sheets" in order to get paid; after that date, the
tutors submitted "invoices" to document their provision of
services to Ivy League's clients.
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of Labor], 91 AD3d at 993) – notwithstanding other evidence in
the record that could support a contrary conclusion. Finally, we
cannot say that the Board erred in finding that Ivy League was
liable for contributions based upon wages paid as of the first
quarter of 2009. In the event that Ivy League is able to
document its present contention – that it did not pay any wages
prior to the third quarter of 2011 – its contributions due may be
adjusted accordingly (see Labor Law §§ 517, 518, 570, 571, 576).

     Peters, P.J., Rose, Lynch and Devine, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
