                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 29, 2016                521819
________________________________

In the Matter of the Claim of
   KEITH JOHNSON SR.,
                    Respondent.

NIAGARA FALLS HOUSING                       MEMORANDUM AND ORDER
   AUTHORITY,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   September 8, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.

                             __________


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

      Thomas F. Garner, Middleburgh, for Keith Johnson Sr.,
respondent.

                             __________


Egan Jr., J.

      Appeals from two 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
claimant and others similarly situated.

      The Niagara Falls Housing Authority (hereinafter Housing
Authority) is a nonprofit governmental agency that provides
affordable housing for senior citizens and low-income families.
To facilitate its operations, the Housing Authority created
                              -2-                521819

People and Possibilities, a nonprofit organization, to receive
grants and to provide services to the community. To that end,
claimant was retained by the Housing Authority as an outreach
worker for the Housing Authority's SNUG program, a program that
sought to reduce community violence in high-violence areas within
Niagara Falls. In 2012, after the grant money had been depleted
and his work with the SNUG program ended, claimant applied for
unemployment insurance benefits. The Department of Labor issued
an initial determination finding that claimant was an employee of
the Housing Authority and that the Housing Authority was liable
for unemployment insurance contributions based on remuneration
paid to claimant and others similarly situated. Following a
hearing, an Administrative Law Judge sustained the Department's
determination. Upon administrative appeal, the Unemployment
Insurance Appeal Board agreed, determining that an
employer-employee relationship existed between the Housing
Authority and claimant and that the Housing Authority was liable
for contributions based on remuneration paid to claimant and
others similarly situated. The Housing Authority now appeals.

      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]).

      Contrary to the Housing Authority's contention that it only
exercised incidental control over claimant, we find that the
record evidence establishes that People and Possibilities was
created so that the Housing Authority could receive donations and
grant money, that it acted as a subsidiary and agent for the
Housing Authority's benefit and that the Housing Authority
                              -3-                521819

remained the fiscal and administrative agent for People and
Possibilities's SNUG program. Prior to his hiring, claimant
filled out an application and was required to submit a résumé,
after which he was interviewed by a panel, which included two
officials from the Housing Authority, that determined to hire him
(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, claimant was
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 claimant, who was required to work 35 hours per
week, was not subject to negotiation, and claimant was required
to fill out and submit weekly time sheets that would have to be
approved and signed by his supervisor before he would receive his
remuneration from the Housing Authority (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 claimant did not receive benefits,
he was provided with the option to purchase life insurance and
was reimbursed for certain expenses (see e.g. Matter of
Armbruster [Summit Health, Inc.—Commissioner of Labor], 138 AD3d
1367, 1368 [2016], lv dismissed ___ NY3d ___ [Sept. 13, 2016]).
The Housing Authority also provided claimant with office space to
use in one of its buildings. While performing his duties as an
outreach worker, claimant was required to wear an identification
badge, as well as a jacket or shirt that identified him 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
was required to maintain a certain number of clients and to meet
with those clients. Claimant also was not allowed to subcontract
his work or employ a substitute to perform his work (see Matter
of Ritch [Island Tutoring Ctr., Inc.–Commissioner of Labor], 139
AD3d 1151, 1152 [2016]), and his work in the community was
reviewed periodically and was subject to oversight by his
supervisors (see e.g. Matter of Waggoneer [Preston Leasing
Corp.—Commissioner of Labor], 137 AD3d 1380, 1381 [2016]).
Considering the foregoing evidence, the Board's finding that an
                              -4-                  521819

employer-employee relationship existed between claimant and the
Housing Authority is supported by substantial evidence and will
not be disturbed.

     Garry, J.P., Lynch, Rose and Aarons, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
