                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 6, 2016                   521970
________________________________

In the Matter of the Claim of
   ERROL P. CAMPBELL,
                    Respondent.

TDA INDUSTRIES, INC.,                       MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   September 12, 2016

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

                             __________


      Eaton & Van Winkle LLP, New York City (Steven W. Wolfe of
counsel), for appellant.

      Eric B. Kaviar, New York City, for Errol P. Campbell,
respondent.

                             __________


Clark, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed January 29, 2015, which ruled that claimant
was entitled to receive unemployment insurance benefits.

      TDA Industries, Inc. operates an indoor tennis club located
in Manhattan. Claimant was a tennis pro who provided individual
and group lessons to TDA's clients from 1988 to 2013. After
claimant was terminated from TDA, he applied for unemployment
insurance benefits, and the Department of Labor denied his
application upon finding, among other things, that he was an
independent contractor and not an employee of TDA. Following a
                              -2-                521970

hearing at which TDA failed to appear, an Administrative Law
Judge overruled the Department's determination, finding that
claimant was TDA's employee. TDA successfully moved to reopen
the hearing, and, after another hearing, the Administrative Law
Judge once again found that claimant was an employee. The
Unemployment Insurance Appeal Board affirmed that decision and
concluded that claimant was entitled to benefits. TDA appeals.

      We affirm. "[I]t is well settled that the existence of an
employment relationship is a factual issue for the Board to
resolve and its determination will not be disturbed if supported
by substantial evidence" (Matter of Raynor [Synchronicity, Inc.—
Commissioner of Labor], 135 AD3d 1261, 1261 [2016]; see Matter of
DeVaul [Guardi—Commissioner of Labor], 138 AD3d 1371, 1371
[2016]). "An 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" – with
the latter being the more important factor (Matter of Empire
State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15
NY3d 433, 437 [2010]; accord Matter of Waggoneer [Preston Leasing
Corp.—Commissioner of Labor], 137 AD3d 1380, 1380 [2016]).

      The testimony at the hearing established that TDA is solely
responsible for setting the court rental and lesson fees,
scheduling lessons, assigning tennis pros to clients who sign up
for lessons and dictating which particular tennis court is to be
used for each lesson. For certain group lessons, TDA even
directs what type of stroke the tennis pros must teach. If a
client is dissatisfied with a tennis pro's services, the
complaint is handled by TDA. In addition, in the event that a
tennis pro is unable to attend a scheduled lesson, TDA
facilitates the rescheduling of the lesson or the coordinating of
a substitute tennis pro to teach the lesson. According to the
testimony of claimant and another tennis pro, which the Board
explicitly credited, if a tennis pro misses a scheduled lesson
and the court cannot be rented to another client, TDA deducts the
cost of the court rental fee from the tennis pro's weekly
earnings.

      As for payment, each tennis pro is paid per lesson and the
pay rate varies depending on, among other things, the pro's
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certifications. Nonseasonal clients pay their court rental and
lesson fees directly to TDA and TDA pays the tennis pros by check
once a week. Seasonal clients – i.e., clients who reserve a
court for an entire season – pay their court rental fee up front
and then pay the tennis pros directly for each lesson at a rate
suggested by TDA and set forth in a contract between TDA and the
client. Overall, despite the existence of proof in the record
that could result in a contrary finding (see Matter of Concourse
Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]), we find
that the record contains substantial evidence to support the
Board's decision that TDA exercised sufficient control over
claimant's work so as to be considered his employer (see Matter
of Raynor [Synchronicity, Inc.—Commissioner of Labor], 135 AD3d
at 1262; Matter of Yoga Vida NYC, Inc. [Commissioner of Labor],
119 AD3d 1314, 1314-1315 [2014], lv granted 24 NY3d 909 [2014];
Matter of Human Performance, Inc. [Commissioner of Labor], 28
AD3d 971, 972 [2006]; compare Matter of Cohen [Classic Riverdale,
Inc.—Commissioner of Labor], 136 AD3d 1179, 1180-1181 [2016]).
Finally, we find unavailing TDA's assertion that claimant should
be estopped from claiming that he was an employee given that he
deducted expenses on his federal tax return as if he were self-
employed (see Matter of Stuckelman [Blodnick, Gordon, Fletcher &
Sibell, P.C.–Commissioner of Labor], 16 AD3d 882, 883 [2005]).

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



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
