                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 29, 2016                   521820
________________________________

In the Matter of the Claim of
   ERIC DAVIS,
                    Respondent.

NIAGARA FALLS HOUSING
   AUTHORITY,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(Claim No. 1.)
_________________________________           MEMORANDUM AND ORDER

In the Matter of the Claim of
   XAVIER WALKER,
                    Respondent.

NIAGARA FALLS HOUSING
   AUTHORITY,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(Claim No. 2.)
________________________________


Calendar Date:   September 13, 2016

Before:   McCarthy, J.P., Garry, Devine, Clark and Mulvey, JJ.

                             __________


      Hodgson Russ LLP, Buffalo (Melanie J. Beardsley of
counsel), for appellant.

      Thomas F. Garner, Middleburgh, for Eric Davis and Xavier
Walker, respondents.
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      Eric T. Schneiderman, Attorney General, New York City
(Steven Koton of counsel), for Commissioner of Labor, respondent.

                           __________


Mulvey, J.

      Appeals from four decisions of the Unemployment Insurance
Appeal Board, filed December 3, 2014, which ruled, among other
things, that Niagara Falls Housing Authority is liable for
unemployment insurance contributions on remuneration paid to
claimants and others similarly situated.

      The Niagara Falls Housing Authority (hereinafter Housing
Authority) is a nonprofit governmental agency that provides
housing for senior citizens, low-income families and individuals
with disabilities. To facilitate its operations, the Housing
Authority created People and Possibilities, a nonprofit
organization, to receive grants and to provide services to the
community. To that end, claimant Eric Davis was retained by the
Housing Authority as an outreach worker, while claimant Xavier
Walker was retained as a supervisor for the Housing Authority's
SNUG program, a program that sought to reduce community violence.
In 2012, after the grant money had been depleted and their work
with the Housing Authority concluded, claimants applied for
unemployment insurance benefits. The Department of Labor issued
initial determinations finding that claimants were employees of
the Housing Authority and that the Housing Authority was liable
for unemployment insurance contributions based on remuneration
paid to claimants and others similarly situated. Following a
combined hearing, an Administrative Law Judge sustained the
Department's determinations. Upon administrative appeal, the
Unemployment Insurance Appeal Board agreed, determining that an
employer-employee relationship existed between the Housing
Authority and claimants and that the Housing Authority was liable
for contributions based on remuneration paid to claimants and
others similarly situated. The Housing Authority now appeals.
                              -3-                521820

      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, 1074
[2015], lv dismissed 27 NY3d 1060 [2016]). Although no single
factor is determinative, "[t]he 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" (Matter of Stewart
[American Inst. for Stuttering—Commissioner of Labor], 137 AD3d
1395, 1395 [2016]; see Matter of Empire State Towing & Recovery
Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]).

      The record evidence establishes that the Housing Authority
advertised for applicants and that each claimant filled out an
application and each was required to submit a résumé and
references, after which claimants were interviewed by a panel
that determined to hire claimants (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]).
Upon being hired, claimants were required to attend training (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]). The rate of pay for claimants, who
generally worked 40 hours per week, was not subject to
negotiation (see Matter of Klotz [Blue Perimeter, Inc.—
Commissioner of Labor], 127 AD3d 1459, 1460 [2015]), and
claimants were required to fill out and submit weekly time sheets
that would have to be approved before they would receive their
remuneration (see Matter of Lamar [Eden Tech., Inc.—Commissioner
of Labor], 109 AD3d 1038, 1039 [2013]; Matter of Ray Catena Corp.
[Commissioner of Labor], 274 AD2d 819, 820 [2000]). While
claimants did not receive benefits, they were reimbursed for
expenses related to the costs of a cell phone, gas, tolls,
cleaning and office supplies and shirts (see e.g. Matter of
Armbruster [Summit Health, Inc.—Commissioner of Labor], 138 AD3d
1367, 1368 [2016]). While performing duties as an outreach
                              -4-                  521820

worker, claimants were required to wear a Housing Authority
identification badge and a jacket or shirt identifying them as
part of the SNUG program (see Matter of Mitchum [Medifleet,
Inc.—Commissioner of Labor], 133 AD3d at 1157; Matter of Cohen
[Just Energy Mktg. Corp.—Commissioner of Labor], 117 AD3d at
1113) and were required to maintain a certain number of clients
and to meet with those clients. Claimants were also informed by
the program manager of what activities they were required to
participate in or attend, and community events and activities had
to be approved through the SNUG program. Claimants were also not
allowed to subcontract their work or employ a substitute to
perform their work (see Matter of Ritch [Island Tutoring Ctr.,
Inc.—Commissioner of Labor], 139 AD3d 1151, 1152 [2016]).
Considering the foregoing evidence, the Board's finding that an
employer-employee relationship existed between claimants and the
Housing Authority is supported by substantial evidence and will
not be disturbed.

     McCarthy, J.P., Garry, Devine and Clark, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
