                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 28, 2016                    521398
________________________________

In the Matter of the Claim of
   LINDA ARMBRUSTER,
                    Respondent.

SUMMIT HEALTH, INC.,                        MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   March 25, 2016

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

                             __________


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

      David E. Woodin, Catskill, for Linda Armbruster,
respondent.

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

                             __________


Lynch, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed October 6, 2014, which ruled, among other
things, that Summit Health, Inc. was liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.

      Claimant, a licensed practical nurse, worked as a health
examiner for Summit Health, Inc., a health and wellness company
                              -2-                521398

that provides nurses to perform health screening and testing to
employees of its corporate clients at the client's workplace.
The Unemployment Insurance Appeal Board determined, among other
things, that claimant was an employee of Summit and that Summit
was liable for unemployment insurance contributions on
remuneration paid to claimant and others similarly situated.
Summit appeals.

      We affirm. Under established law, "[t]he existence of an
employer-employee relationship is a factual issue for the Board
to resolve and its decision will be upheld if supported by
substantial evidence" (Matter of Lobban [Precinct Sec. &
Investigations, Inc.–Commissioner of Labor], 131 AD3d 1294, 1294
[2015]). Here, where "the work of medical professionals is
involved, the pertinent inquiry is whether the purported employer
retained overall control over the work performed" (Matter of
Lawlor [ExamOne World Wide, Inc.–Commissioner of Labor], 130 AD3d
1345, 1346 [2015] [internal quotation marks and citation
omitted]; see Matter of Salamanca Nursing Home, Inc. [Roberts],
68 NY2d 901, 903 [1986]). Moreover, "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 an employment relationship" (Matter of Lobban
[Precinct Sec. & Investigations, Inc.–Commissioner of Labor], 131
AD3d at 1294 [internal quotation marks and citation omitted]).

      During the relevant period, Summit posted openings for
medical examiners on its website, interviewed applicants and
screened their education, license credentials and experience to
ensure their qualifications and ability to perform the required
medical services. Summit scheduled the clinics with its clients,
who determined what services were needed; Summit then posted the
clinic dates, enabling examiners to sign up to work based upon
their availability, and they were paid a set hourly rate. Summit
provided all of the equipment and supplies for the clinics and
reimbursed the examiners for certain travel and other expenses.
If examiners could not work as scheduled, they reported to
Summit, which looked for a replacement. Summit solicited
claimant to work for it after reviewing her credentials posted on
a job website. Claimant worked as a health examiner and a
registrar as well as a lead examiner responsible for oversight of
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the clinic, bringing and returning supplies and equipment
provided by Summit, submitting patient consent forms to Summit,
resolving problems and reporting back to Summit after the clinic
was completed. Examiners were required to sign contracts
designating them as independent contractors, which obligated them
to comply with industry best practices and provided training
available for that purpose; they were required to wear a Summit
identification badge and to abide by a dress code at clinics,
among other provisions.

      Given the foregoing, we find that there was substantial
evidence to support the Board's determination that Summit
retained sufficient overall control over the work performed by
claimant to establish that she was an employee of Summit,
notwithstanding evidence in the record that would support a
contrary conclusion. To that end, we find the pertinent facts
here to be materially indistinguishable from those in a prior
case in which we concluded that Summit is the employer of its
certified medical technicians (see Matter of Goddard [Summit
Health, Inc.–Commissioner of Labor], 118 AD3d 1200, 1201 [2014],
lv dismissed 24 NY3d 975 [2014]). Finally, the Board correctly
held that its finding of employment applies to others determined
to be similarly situated to claimant (see Labor Law § 620 [1]
[b]; Matter of Mitchum [Medifleet, Inc.–Commissioner of Labor],
133 AD3d 1156, 1157-1158 [2015]).

     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
