                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 19, 2015                   520110
________________________________

In the Matter of the Claim of
   CARMINE FRANCO,
                    Respondent.

PYRO ENGINEERING INC., Doing                MEMORANDUM AND ORDER
   Business as BAY FIREWORKS,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   October 13, 2015

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

                             __________


     Lawrence B. Goodman, New York City, for appellant.

      Michelle I. Rosien, Philmont, for Carmine Franco,
respondent.

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

                             __________


Clark, J.

      Appeals from three decisions of the Unemployment Insurance
Appeal Board, filed February 12, 2014, which ruled, among other
things, that Pyro Engineering Inc. was liable for additional
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.

      Pyro Engineering Inc. (hereinafter PEI) is engaged in the
business of providing professional fireworks displays to clients
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that include municipalities, theme parks, private clubs and
individuals. In connection therewith, PEI retained the services
of lead technicians, who are in charge of producing the fireworks
displays, and pyrotechnicians, who assist the lead technicians
with these productions. Claimant, a pyrotechnician, begin
working on PEI's displays in 2006 after being introduced to PEI
through a lead technician. The Department of Labor undertook an
audit of PEI's operations during 2006 and 2007 to determine those
individuals for whom it might be liable for unemployment
insurance contributions. As a result, the Department issued
initial determinations finding that claimant and other similarly
situated pyrotechnicians were employees of PEI for whom it was
liable for additional contributions and it assessed PEI
$11,822.11 for contributions covering the period January 1, 2006
through December 31, 2007. PEI objected and following extended
proceedings, including a hearing before an Administrative Law
Judge, the Unemployment Insurance Appeal Board ultimately
sustained the initial determinations and found that claimant was
an employee of PEI eligible to receive benefits. PEI appeals and
we reverse.1

      Initially, "[i]t is well settled that the existence of an
employment relationship turns upon the control exercised by the
employer over the results produced or the means used to obtain
those results, with control over the latter being the more
important factor to consider" (Matter of Holleran [Jez Enters.,
Inc.–Commissioner of Labor], 98 AD3d 757, 758 [2012]; see Matter
of Empire State Towing & Recovery Assn., Inc. [Commissioner of
Labor], 15 NY3d 433, 437 [2010]). Notably, incidental control
over the results produced, without more, is not sufficient to
establish an employment relationship (see Matter of Chan [Confero
Consulting Assoc., Inc.–Commissioner of Labor], 128 AD3d 1124,


     1
        Three cases stemming from separate initial determinations
were combined for purposes of the administrative hearing and the
appeal. They involve similar issues, namely, claimant's
eligibility for benefits, PEI's liability for additional
unemployment contributions based upon remuneration paid to
claimant and others similarly situated and the amount of
additional contributions owed by PEI.
                              -3-                520110

1125 [2015]; Matter of Richins [Quick Change Artistry, LLC–
Commissioner of Labor], 107 AD3d 1342, 1344 [2013]).

      Here, claimant did not submit a resume or employment
application and did not undergo a job interview, but was retained
by PEI through his contact with a lead technician and worked on
PEI's displays intermittently over a five-year period. PEI
relied on lead technicians, who were independent contractors, to
oversee the production of the fireworks displays and they
directed and supervised the pyrotechnicians involved in a
particular project. Claimant's duties as a pyrotechnician
included picking up the fireworks supplies, setting up the
displays, igniting the fireworks, breaking down the displays and
cleaning up. PEI did not attend the fireworks displays, but
limited its activities to securing the sponsors, designing the
shows and providing the fireworks and other necessary equipment.
The lead technicians negotiated the price for production services
with PEI and submitted invoices instructing PEI how much to pay
the pyrotechnicans involved. PEI solicited assignments one at a
time and the lead technicians and pyrotechnicians were free to
refuse assignments and work for competitors. Although PEI
offered to provide training, it was training that was required by
regulatory agencies and could be obtained elsewhere.
Furthermore, the lead technicians and pyrotechnicans did not wear
clothing or other attire identifying them with PEI, but instead
wore T-shirts designating them as "staff" that were required by
law. Under the circumstances presented, the indicia of control
necessary to establish the existence of an employment
relationship between PEI and the pyrotechnicans, like claimant,
is clearly lacking (see e.g. Matter of Lee [Encore Nationwide,
Inc.–Commissioner of Labor], 127 AD3d 1399, 1399-1400 [2015];
Matter of Columbia Artists Mgt. LLC. [Commissioner of Labor], 109
AD3d 1055, 1057-1058 [2013]). Accordingly, the Board's decisions
finding otherwise must be reversed.

     Lahtinen, J.P., Garry and Egan Jr., JJ., concur.
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      ORDERED that the decisions are reversed, without costs, and
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
