                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 23, 2015                     519638
________________________________

In the Matter of the Claim of
   STACEY A. DICKSON,
                    Respondent.

EXAMONE WORLD WIDE INC.,                    MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   June 2, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


      DLA Piper, LLP, New York City (Erin Carney D'Angelo of
counsel), for appellant.

      Francis J. Smith, Albany, for Stacey A. Dickson,
respondent.

                             __________


Lahtinen, J.

      Appeals from three decisions of the Unemployment Insurance
Appeal Board, filed November 20, 2013, which ruled, among other
things, that ExamOne World Wide Inc. is liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.

      Claimant was a mobile medical examiner for ExamOne World
Wide Inc., and the Unemployment Insurance Appeal Board upheld a
decision that she was an employee and not, as argued by ExamOne,
an independent contractor. For the reasons set forth in Matter
of Lawlor (ExamOne World Wide Inc.–Commissioner of Labor) (___
                              -2-                519638

AD3d ___ [decided herewith]), as well as Matter of Scinta
(ExamOne World Wide Inc.–Commissioner of Labor) (113 AD3d 959
[2014]), we are unpersuaded by ExamOne's argument that the
Board's decisions must be reversed.

      ExamOne raises the additional argument that claimant herein
did not have sufficient earnings after voluntarily leaving her
job to qualify for benefits. Under the statute in effect at the
relevant time, a person who voluntarily left employment without
good cause did not qualify for unemployment benefits until that
person had "subsequently worked in employment and earned
remuneration at least equal to five times his or her weekly
benefit rate" (Labor Law former § 593 [1] [a]).1 Determining
whether a claimant had sufficient subsequent earnings "is a
factual question for the Board to resolve and its decision will
not be disturbed if supported by substantial evidence" (Matter of
Santiago [Commissioner of Labor], 63 AD3d 1357, 1357 [2009]).
Claimant's benefit rate was $217 and, thus, she was required to
earn $1,085 after voluntarily leaving ExamOne before being
eligible for benefits. ExamOne failed to establish the specific
date in January 2012 that claimant's relationship with it
terminated, but the proof put such date between January 12, 2012
and January 26, 2012. During the first quarter of 2012 – a time
period that included when claimant was working for ExamOne as
well as subsequent thereto – claimant earned $3,174.92 from
another employer, and it is uncontested that $855.85 of such
amount was earned in February 2012. Therefore, she needed to
earn only an additional $229.15 during the pertinent base period
after leaving ExamOne to reach the $1,085 necessary for
eligibility. The Board determined that, of the remaining
$2,319.07 earned from the other employer (i.e., $3,174.92 total
earned minus $855.85 accounted for February 2012), at least
$229.15 of it was earned after claimant left ExamOne and during
the pertinent period. Inasmuch as this factual determination is
supported by substantial evidence, we affirm. The remaining
arguments are unpersuasive.


    1
        The statute now requires subsequent earnings of at least
10 times the weekly benefit rate (see Labor Law § 593 [1] [a], as
amended by L 2013, ch 57).
                        -3-                   519638

Peters, P.J., Garry and Lynch, JJ., concur.



ORDERED that the decisions are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
