                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 21, 2016                    520934
________________________________

In the Matter of the Claim of
   STEVEN KRISTENSEN,
                    Respondent.

LAW OFFICES OF DAVID C.
   BIRDOFF,                                 MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   March 24, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                             __________


      Law Offices of David C. Birdoff, New York City (David C.
Birdoff of counsel), for appellant.

      Samuel D. Castellino, Big Flats, for Steven Kristensen,
respondent.

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

                             __________


McCarthy, J.P.

      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed July 9, 2014, which ruled that the Law Offices of
David C. Birdoff was liable for unemployment insurance
contributions on remuneration paid to claimant and those
similarly situated.
                              -2-                520934

      Claimant was employed as a paralegal at a small law office.
Following claimant's application for unemployment insurance
benefits, the Unemployment Insurance Appeal Board overruled the
law office's objection that claimant was an independent
contractor and, based upon a finding of an employer-employee
relationship, deemed the law office liable for unemployment
insurance contributions on remuneration paid to claimant and
those similarly situated. This appeal ensued.

      We affirm. The existence of an employer-employee
relationship is a factual determination for the Board to resolve
and its decision will be upheld if supported by substantial
evidence (see Matter of Morris [Source Interlink Media, LLC–
Commissioner of Labor], 131 AD3d 1287, 1287 [2015], lv dismissed
26 NY3d 1137 [2016]; Matter of Singhal [Brody–Commissioner of
Labor], 128 AD3d 1308, 1308 [2015]). "While no factor is
determinative and all aspects of the work arrangement must be
examined, the primary focus is whether the purported employer
exercises control over the results produced or, more importantly,
the means by which those results are produced" (Matter of Eckert
[Fox Mobile Distrib. LLC–Commissioner of Labor], 133 AD3d 1075,
1076 [2015] [internal quotation marks and citations omitted]; see
Matter of Guidicipietro [Hariton & D'Angelo, LLP–Commissioner of
Labor], 24 AD3d 1159, 1159-1160 [2005]). Here, the record
establishes that claimant's work was assigned by the law office,
he could not reassign his work to anyone, he was paid hourly and
he was required to submit time sheets reflecting both client
billable hours and administrative hours. Furthermore, claimant's
work was reviewed by an attorney, any corrections were to be made
by claimant, the law office was ultimately responsible for the
work product, the law office supplied claimant with all of the
equipment and material needed to perform the work and any
expenses were reimbursed by the law office. In view of the
foregoing, substantial evidence supports the Board's finding that
the law office exercised sufficient control over claimant's work
to establish an employer-employee relationship (see Matter of
Singhal [Brody–Commissioner of Labor], 128 AD3d at 1309; Matter
of Spinelli [Commissioner of Labor], 300 AD2d 770, 771 [2002]).
As such, the Board's decision will not be disturbed.

     Egan Jr., Rose, Devine and Clark, JJ., concur.
                        -3-                  520934

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
