                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 18, 2016                   520759
________________________________

In the Matter of the Claim of
   STEVEN S. COHEN,
                    Respondent.

CLASSIC RIVERDALE, INC.,                    MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   January 13, 2016

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

                             __________


      Mintz & Gold, LLP, New York City (Jeffrey D. Pollack of
counsel), for appellant.

      Christopher Hammond, Cooperstown, for Steven S. Cohen,
respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Linda D. Joseph of counsel), for Commissioner of Labor,
respondent.

                             __________


Garry, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed July 9, 2014, which ruled, among other
things, that Classic Riverdale Inc. is liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.
                              -2-                520759

      Classic Riverdale Inc. operates a senior living facility.
Claimant is a fitness instructor who provided exercise classes to
the facility's residents from 2002 to 2010. After Classic
Riverdale ceased using claimant's services, he applied for
unemployment insurance benefits and the Department of Labor
granted his application upon finding that he was an employee of
Classic Riverdale and not an independent contractor. A hearing
was held that resulted in an Administrative Law Judge overruling
the Department's determination and finding that claimant was an
independent contractor. The Unemployment Insurance Appeal Board
reversed that decision and found that an employment relationship
existed between claimant and Classic Riverdale entitling him to
benefits and that Classic Riverdale was liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated. Classic Riverdale appeals.

      We reverse. "An employer-employee relationship exists when
the evidence shows that the employer exercises control over the
results produced or the means used to achieve the results" with
the second factor deemed to be more important (Matter of Empire
State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15
NY3d 433, 437 [2010]; see Matter of Encore Music Lessons LLC
[Commissioner of Labor], 128 AD3d 1313, 1314 [2015]). The
Board's determination will be upheld where it is supported by
substantial evidence, a standard that requires "'proof within the
whole record of such quality and quantity as to generate
conviction in and persuade a fair and detached fact finder that,
from that proof as a premise, a conclusion or ultimate fact may
be extracted reasonably – probatively and logically'" (Matter of
Rodriguez [2020 Video Voice Data, Ltd.—Commissioner of Labor], 58
AD3d 929, 930 [2009], quoting 300 Gramatan Ave. Assoc. v State
Div. of Human Rights, 45 NY2d 176, 181 [1976]). An employment
relationship does not exist where "the evidence establishes that
the alleged employer exercises only incidental control over the
results produced – without further evidence of control over the
means employed to achieve the results" (Matter of Chan [Confero
Consulting Assoc., Inc.–Commissioner of Labor], 128 AD3d 1124,
1125 [2015] [internal quotation marks, brackets and citations
omitted]).

     After learning from a client that Classic Riverdale was
                              -3-                520759

seeking an exercise instructor, claimant contacted the facility's
executive director and offered his services. Claimant and the
director negotiated a flat fee for each class and set a schedule
for the classes. Classic Riverdale did not provide any training
or require claimant to wear a uniform. He was not required to
punch in or out on the employee time clock, did not use the
employee facilities, such as the locker room or cafeteria, and
was not invited to attend employee meetings. Claimant alone
determined the content of the classes and method of instruction
(compare Matter of Yoga Vida NYC, Inc. [Commissioner of Labor],
119 AD3d 1314, 1314-1315 [2014], lv granted 24 NY3d 909 [2014]).
There was no limitation placed on the amount of time that
claimant could miss from work and his attendance was not
monitored. He was never given a performance evaluation and was
not subject to any form of discipline (see Matter of Leazard
[TestQuest, Inc.–Commissioner of Labor, 74 AD3d 1414, 1415
[2010]). Claimant also maintained his own liability insurance
(compare Matter of Fitness Plus [Commissioner of Labor], 293 AD2d
909, 910 [2002]). Notably, in addition to providing classes at
the facility, claimant also provided services to other clients
and solicited the facility's residents for private, one-on-one
classes without any objection from Classic Riverdale (compare
Matter of Raynor [Synchronicity, Inc–Commissioner of Labor],
135 AD3d 1261 [2016]; see Matter of Leazard [TestQuest,
Inc.–Commissioner of Labor], 74 AD3d at 1415.).

      The fact that claimant taught the classes on the facility's
premises does not indicate an employment relationship, given that
claimant was retained for that very purpose (see Matter of Hertz
Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004]).
Moreover, the occasional observation of the classes by a facility
director, in the absence of evidence of any resulting impact on
the means or results of claimant's work, fails to demonstrate the
exercise of control (see Matter of Werner [CBA Indus.–Hudacs],
210 AD2d 526, 528 [1994], lv denied 86 NY2d 702 [1995]). While
some of the factors cited by the Board may demonstrate that
Classic Riverdale exercised incidental control over claimant (see
Matter of Best [Lusignan–Commissioner of Labor], 95 AD3d 1536,
1538 [2012]), we find that the record as a whole lacks
substantial evidence to support the determination of an employer-
employee relationship (see Matter of Jhaveri [Stacy Blackman
                              -4-                  520759

Consulting, Inc.–Commissioner of Labor], 127 AD3d 1391, 1392
[2015]; Matter of Leazard [TestQuest, Inc.–Commissioner of Labor,
74 AD3d at 1415; Matter of Omnipop, Inc. [Commissioner of Labor],
68 AD3d 1575, 1577 [2009]).

     Peters, P.J., Egan Jr., Rose and Clark, JJ., concur.



      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
