                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   522583
________________________________

In the Matter of CYNTHIA
   DEVORE,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

THOMAS P. DiNAPOLI, as State
   Comptroller, et al.,
                    Respondents.
________________________________


Calendar Date:   September 12, 2016

Before:   Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.

                             __________


      Featherstonhaugh, Wiley & Clyne, LLP, Albany (James D.
Featherstonhaugh of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondents.

                             __________


Devine, J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Albany County) to
review a determination of respondent Comptroller partially
denying petitioner's application for retirement service credits.

      Petitioner is a medical doctor and has provided services as
a school physician and medical director for numerous entities
since the 1980s. She is also a member of respondent New York
State and Local Retirement System. A dispute arose as to whether
she was entitled to service credit for certain periods in which
she was reported as a part-time employee by Monroe Number 1
BOCES, as well as the Brighton, Greece, Rush-Henrietta,
                              -2-                522583

Spencerport and Williamsville Central School Districts
(hereinafter collectively referred to as the school districts).
A hearing was conducted, after which the Retirement System
conceded that petitioner was an employee of Monroe Number 1 BOCES
and entitled to service credit for that work. The Hearing
Officer found that petitioner had not sustained her burden of
showing that she was an employee of the school districts,
however, and declined to award her service credit for that work.
Respondent Comptroller adopted the Hearing Officer's findings and
conclusions. Petitioner commenced this CPLR article 78
proceeding to challenge the Comptroller's determination insofar
as it found her to be an independent contractor for the school
districts for the relevant periods.1

      In "calculating retirement benefits, service credit is
available only to employees, not independent contractors" (Matter
of Doner v Comptroller of State of N.Y., 262 AD2d 750, 751
[1999]), and "[a]n 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"
(Matter of Empire State Towing & Recovery Assn., Inc.
[Commissioner of Labor], 15 NY3d 433, 437 [2010]). Inasmuch as
petitioner provided professional medical services that are not


    1
        The Retirement System found that petitioner was
ineligible for service credit for periods in which she was
categorized as an employee by the school districts. Petitioner
limited her arguments at the hearing to those periods, which are
as follows: July 1, 2002 to November 2008 for Williamsville
Central School District; July 1, 2003 to the present for Greece
Central School District; February 1, 2006 to the present for
Rush-Henrietta Central School District; July 1, 2005 to June 30,
2008 for Spencerport Central School District; and July 2005 to
the present for Brighton Central School District. Petitioner
argued for the first time in the instant CPLR article 78
proceeding that she is entitled to service credit for longer
periods of time but, given her failure to raise those issues at
the administrative level, they are not properly before us and we
decline to address them (see Matter of Petak v Tax Appeals Trib.
of State of N.Y., 217 AD2d 807, 809 [1995]).
                              -3-                522583

amenable to direct control, however, "the absence of [that]
control is not dispositive of the existence of an employer-
employee relationship" (Matter of Mowry v DiNapoli, 111 AD3d
1117, 1118 [2013]; see Matter of Empire State Towing & Recovery
Assn., Inc. [Commissioner of Labor], 15 NY3d at 437-438; Matter
of Salamanca Nursing Home [Roberts], 68 NY2d 901, 903 [1986]).
An employer-employee relationship will exist under such
circumstances if the putative employer exercised overall "control
over important aspects of the services performed other than
results or means" (Matter of Concourse Ophthalmology Assoc.
[Roberts], 60 NY2d 734, 736 [1983]; accord Matter of Empire State
Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d at
437). Whether sufficient overall control existed is a factual
issue for the Comptroller, and his resolution of it will be
upheld if supported by substantial evidence in the record
(see Matter of Brothman v DiNapoli, 114 AD3d 1072, 1073 [2014];
Matter of Mowry v DiNapoli, 111 AD3d at 1118).

      Petitioner presented her own testimony, as well as that of
officials from most of the school districts, all of whom
specified how the school districts exercised significant control
over aspects of petitioner's work. The only potential exception
is that, while the school districts had all categorized
petitioner as an employee by 2006, petitioner had previously
executed agreements with the school districts that categorized
her as an independent contractor. Respondents correctly point
out that "[t]he actual transactions between the contracting
parties — and not the labels assigned to their relationships
pursuant to a contract or otherwise — determine whether an
employer-employee relationship exists" (Matter of Handley v New
York State Teachers' Retirement Sys., 74 AD3d 1384, 1385-1386
[2010]; see Matter of Mowry v DiNapoli, 111 AD3d at 1120).

      Those actual transactions between petitioner and the school
districts during the periods at issue were largely consistent and
involved her reporting to specific district officials who did not
tell her how to do her work, but did dictate what tasks she
needed to perform and when she needed to be available to perform
them. Her supervisors monitored her work and gave her regular
performance evaluations. She had access to various fringe
benefits at all but one of the school districts, such as paid
                                 -4-                522583

leave and health insurance.2 She was also provided with office
space and other resources, all of which she utilized since she
did not have a private medical practice and the attendant
administrative resources.

      The foregoing evidence, documenting the significant overall
control exercised by the school districts over aspects of
petitioner's work, faced little challenge from the Retirement
System. The Retirement System, in fact, rested at the hearing
without presenting any witnesses. Thus, upon our review of the
record, we cannot say that substantial evidence supports the
Comptroller's determination that petitioner worked as an
independent contractor for the school districts during the
periods that she was classified by them as an employee
(see Matter of Brothman v DiNapoli, 114 AD3d at 1073; Matter of
Mowry v DiNapoli, 111 AD3d at 1118-1119).

      Petitioner's remaining contention that the determination
was barred by laches due to delay on the part of the Comptroller,
to the extent that it is not academic in light of the foregoing,
has been examined and found to be meritless (see Matter of Mowry
v DiNapoli, 111 AD3d at 1120).

         Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur.




     2
        The hearing testimony suggested that petitioner did not
have access to fringe benefits from the Rush-Henrietta Central
School District.
                              -5-                  522583

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as determined that petitioner was
not an employee of Williamsville Central School District from
July 1, 2002 to November 2008, Greece Central School District
from July 1, 2003 to the present, Rush-Henrietta Central School
District from February 1, 2006 to the present, Spencerport
Central School District from July 1, 2005 to June 30, 2008, and
Brighton Central School District from July 2005 to the present;
petition granted to that extent and matter remitted to respondent
Comptroller for further proceedings not inconsistent with this
Court's decision; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
